Wednesday, September 14, 2016
"Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children"
In just five years — from 2011 to 2016 — the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole. Remarkably, between 2013 and 2016, three states per year have eliminated life-without- parole as a sentencing option for children. Seventeen states now ban the sentence.
This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change. Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know — that a child’s neurological and decision-making capacity is not the same as those of an adult. Adolescents have a neurological proclivity for risk-taking, making them more susceptible to peer pressure and contributing to their failure to appreciate long-term consequences. At the same time, these developmental deficiencies mean that children’s personalities are not as fixed as adults, making them predisposed to maturation and rehabilitation. In other words, children can and do change. In fact, research has found that most children grow out of their criminal behaviors by the time they reach adulthood.
Drawing in part from the scientific research, as well as several recent U.S. Supreme Court cases ruling that life-without-parole sentences violate the U.S. Constitution for the overwhelming majority of children, there is growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole and to ensure that children are given meaningful opportunities to be released based on demonstrated growth and positive change. This momentum has also been fueled by the examples set by formerly incarcerated individuals who were once convicted of serious crimes as children, but who are now free, contribute positively to their communities, and do not pose a risk to public safety.
In addition to the rapid rate of change, legislation banning life without parole for children is notable for the geographic, political, and cultural diversity of states passing these reforms, as well as the bipartisan nature in which bills have passed, and the overwhelming support within state legislatures.
Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children. Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.
It is also important to note that three additional states — Maine, New Mexico, and Rhode Island — have never imposed a life-without-parole sentence on a child. Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.
September 14, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13)
Attica, Attica, Attica, Attica, Attica ... lessons unlearned 45 years later
For film buffs, repeating the words Attica brings to mind a great scene in one of Al Pacino's greatest movies. But, for lots and lots of reasons, Attica and the riots and attacks that took place at this famous New York Prison in September 45 years ago should be remembers for so much more. But, as this new Daily Beast commentary highlights, it is not clear that we have really embraced enduring wisdom from that sad month in upstate New York. The commentary is headlined "Attica’s Lessons Went Unlearned: Our Prisons Are Still a Disgrace," and here is how it gets started:
Forty-five years ago today, on Sept. 13, 1971, nearly 1,300 men were waking up in the yard of the Attica Correctional Facility in upstate New York, eager to begin another long day of negotiations with state officials. After first failing to get help by writing to their state senators and pleading with the commissioner of corrections, these men had begun a protest against inhumane treatment four days earlier. On this rainy, damp morning, they were now hoping that they could finalize the list of improvements to the prison they had been negotiating, as well as secure a promise of no retaliation, so that they could bring their protest to a peaceful end.
Suddenly, however, the men looked up in horror to see a helicopter rising over the walls of the prison. Within minutes, it began blanketing the yard with a thick cloud of toxic tear gas. Then, as men began choking, gagging, and falling to the ground blinded by this noxious powder that now covered their skin and filled their lungs, a phalanx of nearly 600 heavily armed and gas-masked state police rushed into the prison and began shooting these men down. Then, over the next weeks and months, behind the closed doors of Attica, these men were brutally tortured.
Today, Sept. 13, 2016, hundreds of people who live behind bars are once again in jeopardy because, on this 45th anniversary of the Attica prison uprising of 1971, they too just launched a series of human-rights protests as well as work stoppages. Like those prisoners in upstate New York more than four decades ago, prisoners from Florida to Michigan have erupted because they too endure terrible overcrowding, insufficient food, too much time locked in solitary confinement, terrible medical care, and even bruises, broken bones, and, yes, death at the hands of abusive guards.
Their mistreatment is well documented. White guards in one Florida prison, for example, recently forced a black prisoner into a chair, and while choking, kicking and punching him, they screamed “Let’s beat this n——- and teach him a lesson.” What had he done? He had dropped a cookie on the floor. In another Florida correctional facility just a few years earlier, prisoner Darren Rainey died after officers punished him by forcing him to stand in a scalding 180-degree shower for two hours. In Michigan’s prisons, juveniles and women prisoners have been raped by correctional staff, suffered medical abuse and neglect, and have been forced to eat rotten and rat-ridden food.
And yet, just as it was overlooked in 1971, this inhumane treatment has been utterly ignored by prison authorities as well as by the politicians who have the power to do something to stop it. And so prisoners are once again protesting.
For those not familiar with the events in Attica two score and five years ago, the Marshall Project has this very modern review of events there,
Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms
Though I am thoroughly depressed by my Presidential choices in Campaign 2016 (and remain distressing undecided about whether and how I will cast a top-of-the-ticket vote), I am thoroughly excited by all the interesting (and unpredictable) criminal justice reform initiatives that are going to voters in lots of states this November. The highest-profile reform initiatives are probably those in five states seeking to legalize recreational marijuana and the handful of others seeking to legalize medical marijuana. But also getting plenty of attention are the death penalty repeal/reform/retain votes that will take place in California and Nebraska. But this new article from Fusion, headlined "Why Oklahoma activists are bringing criminal justice reforms directly to voters," helps spotlight why I think criminal justice reformers should really be paying extra attention to the Sooner State. Here are excerpts:
Oklahomans will vote in November on two proposals that could significantly reduce the number of people sent to prison in one of the most incarcerating states in the country. The measures, State Questions 780 and 781, would reclassify simple drug possession and property crimes under $1,000 from felonies to misdemeanors. Instead of prison time, people convicted of those crimes would receive drug treatment, mental health treatment, and rehabilitation programs that would be paid for by the savings from not locking them up.
Oklahoma has the second-highest incarceration rate in the country, after Louisiana, and its prisons are at 115% capacity. If the measures are approved by voters, they’re expected to reduce annual prison admissions by 25%, the rate of new inmates who are currently convicted of low-level property crimes and drug possession. Because it costs Oklahoma $15,000 to incarcerate someone and only $6,000 to treat them while they’re on probation, the state could save between $30 and $40 million a year. Reducing the number of felonies would also mean less people would struggle to find employment, housing, and education because of a permanent criminal record. One in 12 state residents is a convicted felon, according to The Oklahoman newspaper.
Legislators and Governor Mary Fallin have already taken steps to reform the state’s criminal justice system, including lowering mandatory minimum sentences for drug crimes and raising the threshold for some property felonies to $1,000. But Kris Steele, the former Republican Speaker of the State House and one of the referendums’ chief backers, said most legislators would be wary of being tarred as “soft on crime” if they passed broader reforms to drug laws.
“We want to sort of bypass the political gridlock that has set us back and give the people of Oklahoma a chance to weigh in on these issues,” he told me. “If we are successful in November, I truly believe the legislature will feel like the people have spoken and that it’s OK and probably even expected to take a smarter approach to criminal justice policy.” Of course, the opposite is also true. “If these state questions do not pass in November, it’s likely that the legislature will interpret that result as the people have spoken and we’re probably done talking about this issue for the next 10 years,” he said. “That keeps me up at night.”
That makes it a high-risk, high-reward proposition for criminal justice activists, who so far have been mostly focused on lobbying legislators. The only other state with criminal justice reform on the ballot in November is California, where voters will decide whether to support a measure backed by Gov. Jerry Brown that would allow thousands of inmates serving time for nonviolent charges to get early parole. (Californians and Nebraskans will also vote on referendums over ending the death penalty.)...
Nationally, polls show that Americans support reforms to reduce sentences for low-level criminals, especially those convicted of drug crimes. Steele said internal polling has shown Oklahomans are also supportive of the measures. The coalition of groups supporting the initiatives — known as Oklahomans for Criminal Justice Reform — includes the state branch of the American Civil Liberties Union, the conservative group Right on Crime, and several law enforcement leaders. So far, supporters of the initiatives have collected 110,000 signatures to get each of the measures on the ballot and held a series of town hall meetings around the state promoting them. Now they’re planning direct mail and TV ads in the two months until election day....
There doesn’t seem to be any organized group opposing the measures, although some sheriffs and prosecutors have spoken out against them. The proposals’ supporters want “to let everybody out of prison, and that’s not what’s healthy for the communities,” Greg Mashburn, the DA for Cleveland County, told The Norman Transcript. Steele said he’d encourage activists in other states to take reform initiatives straight to the voters. “It’s resulted in a very healthy conversation happening in our state” about the costs of mass incarceration, he said—one that wouldn’t have happened otherwise.
For so many reasons, I think this direct democracy vote in Oklahoma could have profound echoes throughout the nation, especially if "deep red" Oklahoma voters, while mostly voting for "law and order" Prez candidate Donald Trump, end up voting for significant sentencing reform in the state. Not only will approval of sentencing reforms by direct democracy likely make Oklahoma elected officials feel more comfortable moving forward with legislative reforms, I think it will send a very strong message to lots of political observers and policy advocates nationwide that the "Right on Crime" movement has real majority support among even conservative-minded voters.
Based on developments in many states and especially at the federal level, it still seems the reality that many politicians, especially older ones on both sides of the aisle, continue to believe quite strongly that vocally supporting significant criminal justice reforms risks a kind of political suicide. That said, the recent modern success that "deep red states like Texas and Georgia have experienced with "smart-on-crime" reforms has played a major role in giving the "Right on Crime" movement momentum, and that momentum has carried over in a number of other red and purple states. But at the federal law, persistent "soft-on-crime" political fears, especially among "old-guard" Democratic leaders like the Clintons and Senators Reid and Representative Pelosi, in my view largely explains why significant statutory sentencing reforms (other than the middling Fair Sentencing Act) have not gotten done throughout the Obama era.
Many people for sensible reasons think the fate of federal sentencing reforms now will turn on who is the next occupant in the Oval Office and who controls the Senate. But I really believe that if Oklahoma voters end up significantly supporting sentencing reform in their state (especially if Trump wins in OK by, say, a 55/40 vote but then sentencing reform is supported by a 60/40 vote), we all can and should become a lot more optimistic about even federal sentencing reforms over the next decade no matter who is in control in DC. For this reason (and others), I strongly believe that criminal-justice-reform-minded "big donors" — yes, I am talking to you Koch brothers and Mr. Soros — should think very seriously about devoting resources to this initiative campaign where a little extra campaign investment could go a very long way in fostering reform in a lot more places than just Oklahoma.
Highlighting polling reality that death penalty remains pretty popular on Left Coast
Ed Morrissey has this effective new commentary about the latest capital punishment polling under the heading "Hmmm: Blue California wants to keep its death penalty, 52/36." Here are excerpts (with a few links retained from the original):
California voters, among the most reliably liberal in the nation, have an opportunity to pass a repeal of the death penalty in November. Proposition 62 would commute the sentence of those on California’s Death Row to life without parole and require a higher percentage of inmate income to go to victim restitution. With opposition to the death penalty a big progressive goal, and with California’s execution process among the slowest and most frustrating in the nation, one would expect overwhelming support for Proposition 62.
Not so, according to a new poll from Survey USA. In fact, opposition to repeal leads by sixteen points, 36/52, and leads among almost all demographics. Majorities of both men (38/54) and women (33/50) oppose repeal. Voters under the age of 35 oppose it in plurality (40/45), but all other age groups oppose it by majorities and double-digit gaps. Black voters and Democrats support repeal, but not significantly enough to overcome overwhelming opposition among all other ethnic and partisan groups. Perhaps most tellingly, the only ideological demo to support repeal are those who identify as “very liberal” — and even then unimpressively at 52/32. Even the ultra-liberal Bay Area has a slight plurality opposed to repeal, 42/47....
The problem with the death penalty in California (besides the issues that form my general opposition to it) is that it’s almost purely academic. California hasn’t executed anyone since 2006, and Clarence Ray Allen had been on Death Row for more than 23 years at that point. That was the second-longest string for those who eventually got executed; Stanley “Tookie” Williams spent almost 25 years waiting for his execution, which finally came in December 2005. They are two of only 13 inmates executed since the reinstatement of the death penalty in 1978.
How many are actually on Death Row now? The state’s September 2016 lists 747 inmates, with sentencing dates from 1982 to this past May. Eight times more inmates have died of other causes (104) than of executions (13).
Death penalty proponents will also have a referendum on the November ballot. Proposition 66 would offer several reforms to speed up the execution process, including expediting all appeals to the state Supreme Court and having attorneys assigned to death-penalty appeals immediately. Presumably this will find more support than Proposition 62, although SUSA didn’t poll on it. Will Californians take steps to fix its capital-punishment system — or be satisfied with a Death Row that just waits inmates to death?
Tuesday, September 13, 2016
Eleventh Circuit judges discuss guidelines and vagueness at great length after denying en banc review in Matchett
As regular readers should recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines. As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines.
In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline. But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.
As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett was not sufficiently convincing to that court. Today, as revealed here, the Eleventh Circuit announced that a majority of its members voters against considering this issue en banc. (For practical reasons, even though I disagree on the merits, this decision now makes sense: as blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in:the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whetherJohnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.)
The actual order denying en banc review is only one-sentence long. But following the order comes 80+ pages of fascinating concurring and dissenting opinions that will surely intrigue any and everyone closely following the legal and practical issues that Beckles implicates. Highly recommended reading for all sentencing fans and law nerds.
Fascinating pictures of "What It Looks Like to Be Behind Bars in Four Different Countries"
The quoted portion of this post title is drawn from the headline of this new Slate article providing something of a sneak-peak into what looks likely to be a very interesting book to look at. Here is how the Slate article begins (though everyone should really click through to see some pictures that strike me as fascinating in so many ways):
After photographing civil servants in eight countries across five continents for his book, Bureaucratics, Jan Banning thought looking at criminal justice systems around the world seemed like a logical next step. In his new book, Law & Order: The World of Criminal Justice, which will be released in the United States this fall, the Dutch photographer brings readers up close to prisons, police, and courts in Colombia, France, Uganda, and the United States.
“I’m interested in these aspects of society that are vital but not necessarily considered to be picturesque,” he said. “Basically, it’s an attempt to visually cope with the question of how we handle crime. I think it always makes tremendous sense to compare different societies as I’ve done with Bureaucratics because, of course, in comparison, the character of a specific society comes out.”
After discussing which countries to focus on with the Max Planck Institute for Foreign and International Criminal Law, Banning started his investigation with a trip to Uganda in 2010. In about two weeks, he was given access to a handful of prisons, and on subsequent visits he was able to visit 10 prisons of various security levels. Even in maximum security establishments, his guide tended to be just a single unarmed warden or assistant, which was indicative of environments he found to be “rather friendly and rather humane.”
“In the beginning, I was a bit suspicious. I thought, ‘OK, maybe this is a PR exercise and they’re just doing this for me.’ But I noticed it in all 10 prisons I was in, and some were tiny local prisons where you wouldn’t expect the personnel to have any idea of PR. So I thought that was honest,” he said. “Of course, the prisons there are still not a place where you’d love to be. They’re overcrowded, half the prison population hasn’t been on trial, and some have been sitting there without charges for five or six years.”
Uganda’s open system allowed him to get some of the more colorful photographs in the book. In the United States, his visits were much more restricted. The prisons themselves, meanwhile, tended to be a lot less visually interesting than those in Uganda, but Banning said he embraced the sterility in his photographs and thought it was important to communicate it in “a fair and relevant way.”
"As Marijuana Prohibition Winds Down, What Will Control Freaks Ban Next?"
The title of this post is the enjoyably provocative headline of this notable new Reason piece authored J.D. Tuccille. Here are some excerpts which appeal to my libertarian instincts while also highlighting why I think much more that just the wicked weed is implicated in movements to reform modern marijuana laws:
As Prohibition, America's first national effort to penalize people for taking pleasure in imbibing psychoactive substances, became increasingly unpopular and widely flouted at the end of the 1920s, an assistant commissioner for the United States Bureau of Prohibition cooked up a successor project. Harry Anslinger left his old gig and took on the role of commissioner of the new Federal Bureau of Narcotics — a predecessor agency to the DEA — and helped launch the national crusade against marijuana. It was a newly demonized intoxicant to give purpose to the power and personnel that had been assembled for the faltering crusade against booze.
"This propitious marriage of state power and moral suasion would yield a dramatic expansion of federal policing and an increase of state and local policing in the quasi-military sphere of crime control," Harvard historian Lisa McGirr writes in her 2015 book, The War on Alcohol: Prohibition and the Rise of the American State. "The war on alcohol and the war on drugs were symbiotic campaigns," McGirr told Reason in an interview. "Those two campaigns emerged together, [and] they had the same shared...logic. Many of the same individuals were involved in both campaigns."
McGirr sees the "federal penal state" of intrusive policing and mass incarceration that arose during Prohibition as the result of the combined efforts of old-time religious scolds who disapproved of alcohol use and Progressives who were eager to use state power to address what they saw as social ills. Together they nationalized what had traditionally been an individual, local, or state concern, gave the government unprecedented power to regulate people's lives, and escalated their efforts as people refused to submit.
But even as it was a consequence of growing state power, Prohibition also helped to normalize the idea that the federal government could and should boss us around. "Faced with the unintended consequences of Prohibition, many men and women began to rethink their commitments to the war on alcohol, but they did not altogether reject the state's right to police and punish the use of other recreational narcotics," McGirr adds in her book.
People also grew accustomed to an activist and intrusive state overall, paving the way for the New Deal and the regulatory state of today. A massive government apparatus, once created, can be used for any purpose its masters desire. "War is the health of the state," Randolph Bourne famously noted. But war doesn't necessarily require ships and planes launched against other nations; it can be waged against a government's own people by police who are empowered by the law to see enemies behind every door.
Then as now, the law was unevenly enforced. If you were a New York socialite during Prohibition, you could continue to drink illicit booze at parties or in speakeasies in relative safety since you weren't considered part of a "problem" population and could push back against authorities — urban ethnics were deliberately targeted for harsher treatment when they broke the law, as were rural blacks. Likewise, Malia Obama was at little risk of more than a parental tongue-lashing when she was caught smoking a joint last month while young people — African-Americans, in particular — whose fathers don't reside in the White House often suffer nastier consequences in the absence of helpful political connections.
Even for booze, the double standard for enforcement remains. While mayor of New York City, national nanny Michael Bloomberg ceaselessly sought to mold and scold his own suffering subjects as he broke the law himself to quaff wine in public. "They were behaving," he said of his friends who were given a pass by police. He's not one of those people, you know, and so he and his buddies shouldn't have to obey rules meant to rein in "problem" groups.
So the desire to control remains in place, nurtured by policy-makers and their supporters who never intend themselves to be the target of enforcement. That desire remains even as public pushback causes yet another prohibition to stumble and fall. Prohibition has its own logic — of control and power — that has very little to do with the specific prohibition at any given moment. Those who would mold the world to suit their vision see no reason to back off their efforts, they've created a vast bureaucracy of enforcers who make their living pushing us around, and they've accustomed us to a state that pokes and prods us at every turn.
So celebrate the relegalization of marijuana for sure. Just don't convince yourself that it means we've seen the end of prohibition, or of the abuses that intrusive government brings. The next big prohibition might be kratom, or another drug, or a grab-bag of substances and activities of which our rulers disapprove. What is banned matters less than the fact of the ban and the apparatus that keeps the ban in place. Winning doesn't mean ending a prohibition, it means disempowering the prohibitionists.
In addition to providing an amusing post title, this commentary inspires me to remind readers once again that one way to keep up with marijuana prohibition winding down is to regularly read my Marijuana Law, Policy and Reform. There you will find these recent posts, among many, many others:
- Crimmigration and cannabis: "Marijuana Is Legal in Colorado — But Only If You're a U.S. Citizen"
- "Study: Can marijuana improve PTSD symptoms for veterans?"
- New medical marijuana regulations create rift among California's marijuana policy reform advocates
- New research indicates that daily marijuana users are less fat
Proving punitiveness does not go out of style, prison populations ticking up even in states with recent track record of declines
This astute new Wall Street Journal article, headlined "Inmate Populations Rise Again in Some States: Opiate addiction and high-profile crimes spur legislators to toughen drug and parole policies," reinforces my sense that the era of mass incarceration is a very long way from being over. Here are snippet from the piece:
An epidemic of opiate addiction and a handful of high-profile crimes have set back efforts by some states to restrain their prison populations, revealing cracks ina bipartisan movement to reduce reliance on incarceration.
In Arkansas, Republican and Democratic lawmakers in 2011 passed a landmark law to reduce harsh drug sentences, as a way to curb costs from overcrowded prisons. The prison population dropped 10% in two years. Then, in 2013, a man who had been released from prison and arrested several times while on parole carjacked and fatally shot an 18-year-old man in Little Rock.
In response, state officials tightened parole policies, and authorities put parolees back behind bars for violating the terms of their release as fast as they could, said Dina Tyler, a state prison official at the time who is now a deputy director at the agency overseeing parole in Arkansas. “It was a natural reaction because something bad happened, and we don’t want it to happen again, so we’ll scoop them all up,” said Ms. Tyler.
The result: Arkansas’s prisons are more crowded than they were before the 2011 legislation. As of late August, the number of prisoners had risen to 18,243, a 25% increase from 2012. Similar reversals have occurred in a handful of other states in recent years, exposing the fragility of an effort to curb prison growth and focus resources on keeping offenders from returning to crime. “It just takes one incident to get things tracking in a different direction,” said James Austin, president of the JFA Institute, a criminal-justice research group that works for Arkansas and other states to forecast prison-population trends, referring to the 2013 Little Rock murder.
A review of prison data from 2007 to 2014, the most recent year analyzed by the U.S. Justice Department’s research arm, shows that at least five states — Arkansas, Hawaii, Kentucky, New Hampshire and Ohio — saw their incarcerated populations fall or stabilize after passing criminal-justice legislation only to see them rise again. Incarceration rates also rebounded in most of those states, and in others that passed laws targeting prison growth, including Arizona and Wisconsin, after dropping initially.
Overall, the percentage of American adults under correctional supervision declined 13% from 2007 to 2014, according to a Pew Charitable Trusts analysis of federal Bureau of Justice statistics. Prison rates dropped in most of the roughly 30 states that passed laws to curtail prison growth in that time, BJS data show. Even in states where rates increased, state officials and criminal-justice experts say such laws have helped slow prison growth, averting millions of dollars in prison costs.
Still, efforts to curtail prison growth have been hampered by uneven implementation of new laws, state officials say. Elected judges in Kentucky and Ohio, for instance, have shown a reluctance to cut sentences and divert offenders into treatment rather than sending them to prison, state officials said. Parole officials haven’t granted early release as often as lawmakers had hoped they would, they said.
The increase in opiate use also has played a role. In Kentucky, the number of jail and prison inmates climbed back to a near record this summer, the state corrections department said, after a drop following a 2011 law. That measure reduced prison time for drug possession, routing the savings into drug treatment, and linked recently released prisoners to community resources. John Tilley, Kentucky’s justice and public-safety secretary, who sponsored the overhaul as a state legislator, attributed the increase to offenders returning to prison in higher numbers and drug arrests fueled by the “heroin scourge.” Last year, Kentucky ratcheted up penalties for trafficking heroin and created a new offense for importing drugs across state lines....
The prison population in Ohio dipped after lawmakers overhauled state sentencing laws in 2011, but it has rebounded this year to nearly 51,000, just shy of the record, according to state figures. “We’ve done all these things, but because of the spike in heroin, we have this uptick,” said Sen. Bill Seitz, a Republican who has led an effort to halt prison growth.
Civil-liberties advocates said scores of new penalties in Ohio have contributed to the rise in prison population. This year, the Legislature made it easier to prosecute people for heroin-trafficking, for example, reducing the threshold for the crime from 250 grams to 100 grams. In May, after staff at the Cincinnati Zoo shot a gorilla to save a boy who had fallen into the animal’s enclosure, legislators talked a colleague out of proposing a new crime for parents who let their child wander into a situation that requires the killing of an endangered animal, Sen. Seitz said. “We try to kindly tell our colleagues we cannot continue to make everything a crime or increase penalties on everything that already is a crime without further contributing to this overcrowding,” Mr. Seitz said.
Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?
I am prompted to prompt the question in the title of this post after review of this interesting Washington Post article, headlined "Did Obama squander an opportunity by nominating Merrick Garland?". Here are a few notable excerpts from the lengthy piece:
No Democratic Senate candidates are talking about Garland in paid television ads. No one mentioned Garland during the Democratic National Convention in July, including Barack Obama.
Hillary Clinton has not committed to re-nominate Garland if she’s elected. While she talks about the Supreme Court, she almost never talks about him.
Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee — especially a minority candidate — to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps Clinton and the party would have more whole-heartedly embraced him or her....
The National Organization for Women signed onto an open letter urging Obama to appoint an African American woman to the court after Scalia died. When Garland was announced, the group expressed concern that he is “more or less a blank slate” on core women’s issues like reproductive rights.
NOW President Terry O'Neill wants the Senate to confirm Garland but she also thinks about how different the dynamic might be right now had the president gone with a more progressive black woman instead of a 63-year-old moderate white man. “I’m not going to say there wasn’t some disappointment,” she said in an interview last night. “I am very positive that the progressive community would be extremely active in promoting a more left-leaning appointment.”
O’Neill posited that an African American woman might have provided a clearer contrast. “Suppose he had nominated an African American woman,” she said. “No matter how moderate she might be, Republicans would say she’s way too out there and way too radical. The same way they talked about President Obama. … I don’t think you can eliminate race from understanding what these senators are doing. There’s no white president that’s ever been treated so disrespectfully.”
She lamented the paucity of media coverage about the vacancy. “Any African American woman who might have been nominated would have been viciously attacked,” O’Neill added. “It’s possible, if those vicious attacks would have happened, then the American public would have been much better informed of the outrageousness of what the Republicans are doing.”
Many of the same progressives who are not enthusiastic about Clinton are also not enthusiastic about Garland. Bernie Sanders said this spring as he campaigned for the Democratic nomination that he would ask Obama to withdraw Garland if he got elected so he could pick someone more liberal.
“We saw some of the highest grassroots energy in our eight year history in the run up to the president's Supreme Court nomination, and when the choice was Merrick Garland that energy completely plummeted,” said Adam Green, co-founder of the Progressive Change Campaign Committee.
Leaders in the African American community have called for a vote on Garland, but a lot of the key groups were also less than thrilled with his selection. Other liberal organizations like Democracy for America, which was founded by Howard Dean, said when Garland was nominated that it was “deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court.”
As readers may recall, the only woman of color who was seriously vetted for this open SCOTUS spot was US District Judge Ketanji Brown Jackson. I thought back in March and continue to think today that the politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick. In addition, as I highlighted in this post in February, GOP House Speaker Paul Ryan spoke in glowing terms abut Ketanji Brown Jackson at her confirmation hearing to become a US District Judge: as he put it, "she is clearly qualified. But it bears repeating just how qualified she is.... Now, our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."
I think it quite likely that, had Prez Obama nominated Judge Brown Jackson, we would be seeing Democratic Senate candidates talking about her in TV ads. I am certain that a number of folks would have mentioned her during the Democratic National Convention in July, and I suspect Hillary Clinton would commit to re-nominate her if she’s elected. Speculating even further, I imagine lots of Democratic senators and House members would be pressing Speaker Ryan to voice support for giving Judge Brown Jackson at least a hearing. And, to really go for it, I could even imagine Colin Kaepernick saying, when asked when he will stand again for the National Anthem, that he will get off his knee if the US Senate moves forward on the SCOTUS nomination of Judge Brown Jackson.
Prior related posts on new SCOTUS nominee possibilities:
- Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
- Prognosticating SCOTUS possibilities in light of existing politics
- New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
- Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?
- The latest SCOTUSblog analysis of the top contenders for SCOTUS nomination
- After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening
Monday, September 12, 2016
Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"
Over the weekend my local paper published this capital commentary by Jim Petro, a widely-respected local Republican leader who served as Ohio Attorney General from 2003 to 2007. Here are excerpts:
As Ohio attorney general, I oversaw 18 executions in accordance with Ohio law. As a state legislator before that, I helped write Ohio’s current death-penalty law. We thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong. What I am coming to understand is just how wrong we were, and what needs to be done to fix our mistake.
My direct experience with executions makes me more than a mere spectator as Ohio continues to struggle with capital punishment. Since I left office in 2007, I’ve been following developments and watching those most deeply engaged with it.
Earlier this week, Ohioans to Stop Executions (OTSE) released its third report in as many years, providing perspectives on the status of Ohio’s death penalty. I am in agreement with the report, “A Relic of the Past: Ohio’s Dwindling Death Penalty,” which details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases.
In 2015, only one new death sentence was handed down. Cuyahoga and Summit counties, two jurisdictions responsible for more than 25 percent of death sentences, initiated zero new death penalty cases last year. In fact, new death sentences overall were down for the fourth year in a row. There were three in 2014, four in 2013, and five in 2012.
It has become clear to me that what matters most is the personal predilections of a county prosecutor. Consider Cuyahoga County, which until 2012 was seeking the death penalty in dozens of cases a year. Last year Cuyahoga County sought none. Crime rates did not plunge. There was a new prosecutor. On the other hand, consider Trumbull County, with one of the lowest homicide rates of Ohio counties which sentence people to death. Trumbull County leads the state with the highest death-sentence-per-homicide rate. Why? Again, the personal preference of the county prosecutor matters most.
The new OTSE report addresses many other issues, including 13 wrongful convictions and exonerations in Ohio death cases. After serving as attorney general, my chief concern was that our state has sentenced individuals to death or lengthy prison sentences for crimes they did not commit....
Most urgently in my view, the new report catalogs the reluctance of Ohio legislators to consider most of the 56 recommendations made in 2014 by the Supreme Court Joint Task Force on the Administration of Ohio’s Death Penalty. The charge to that task force was to find ways to make Ohio’s death penalty more fair and accurate.
Only a handful of the recommendations have been considered, and not those which would make the biggest difference. For example, the recommendation to narrow the felony murder rule would address much of Ohio’s disparity in death sentencing. Thirteen of the recommendations, individually and collectively, would go a long way toward preventing wrongful convictions. In failing to act, legislators effectively maintain the status quo, which is a broken system that currently serves only the interest of Ohio prosecutors. That is a grave mistake.
Another grave mistake is the terrible suggestion by the director of the Ohio Prosecuting Attorneys Association that Ohio adopt the gas chamber to conduct executions. I hope Gov. John Kasich and all Ohio legislators soundly reject that notion. It is offensive to the human experience and has no place in our great state.
I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. Starting in January 2017, 28 Ohioans have execution dates. If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy.
"Does the Supreme Court still believe in prosecutorial discretion?"
The question in the title of this post is the first line in this terrific new commentary by Randall Eliason at his Sidebars blog under the title "White Collar Crime, Prosecutorial Discretion, and the Supreme Court." I recommend everyone (and not just white-collar fans) to read the entire piece, and here is a taste of the astute discussion seeking to answer the question posed:
Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.
On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.
On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play....
In [a series of] recent [SCOTUS] cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors....
[T]he Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.
Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound. The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.
But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions. One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well. If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.
I could write a series of law review articles about all the interesting and important modern issues that this commentary raises. With a particular focus on sentencing issues, I think it is not a coincidence that we are seeing the trend identified here at the same time there are widespread concerns about mass incarceration, the severity of some sentences for nonviolent offenders and the spread of significant collateral consequences for all convicted persons. Also, given that states can (and often will) prosecute any serious criminal activity not clearly covered by federal statutes, I really do not think we need to worry too much about narrow interpretations of broad federal criminal statutes.
Spotlighting the import, impact and new debates over prosecutorial control of charging juves as adults
The Atlantic has this effective new article digging deeply into the role (and possible regulation) of prosecutors in the decision to try certain juvenile defendants in adult court. (As practioners know, the decision to bind a juvenile over to adult court is often essentially a sentencing decision because the decision will often dramatically impact the maximum and minimum sentences a juvenile defendant will face.) The lengthy piece carries this lengthy headline: "Treating Young Offenders Like Adults Is Bad Parenting: As one state wrestles with the effects of trying juvenile defendants in adult courts, others reconsider the practice." I recommend the piece in full, and here are excerpts:
In 2000, voters in California approved Proposition 21, a ballot measure that, among other things, gave district attorneys the right to “direct file” juvenile offenders who committed felonies and other serious crimes like murder and sex offenses. Direct filing gives the D.A. alone the power to decide whether or not a young offender should be tried as an adult in an adult court instead of in the juvenile-justice system. In all, 15 states and Washington, D.C., have such a mechanism in place. In California, the D.A. has to make that decision within 48 hours of an arrest and usually only has the police report to guide his or her decision. In 2014, 393 young people were direct filed and tried in state adult courts. The state attorney general’s 2015 juvenile-justice report states that 88 percent of juveniles tried in adult court were convicted. Call this parenting style the tough-love approach.
Deciding to direct file a young person circumvents the role of a judge, who would otherwise conduct a “fitness hearing” to determine where an offending youth should be tried. It’s like one parent quickly and unilaterally deciding on a child’s punishment without first talking it over with the other parent. In some cases, the second parent might stand firmly behind the first, but in others, being eliminated from the decision can lead to feelings of disrespect, accusations of power-hoarding, and the unearthing of buried tensions in the relationship.
“With direct file, there’s no opportunity for it to go before a judge to make that very important decision on whether or not a child should be prosecuted as an adult,” said Nisha Ajmani, a lawyer and program manager at the Center on Juvenile and Criminal Justice who opposes the practice. She works with lawyers and young clients on direct-file cases or to prepare for fitness hearings.
But the district attorney has an incentive to eschew fitness hearings, since in California they are exhaustive and can take months. The hearings involve evaluating the young person on five criteria: the degree of criminal sophistication exhibited; whether rehabilitation is possible before the end of the juvenile court’s jurisdiction, at age 21; the delinquency history; the success of any previous attempts at rehabilitation by the juvenile court; and the circumstances and gravity of the offense that’s alleged.
California has worked in earnest in recent years to provide judges more guidance on those fitness criteria. Now the state also emphasizes factors such as the offender’s home and family environment growing up, exposure to violence and trauma, mental and emotional development, and circumstances outside of the seriousness of the crime that might be relevant to the decision to prosecute in an adult court. Call this parenting style the holistic approach. “A judge should really be the party making that decision after a fair, thorough, and neutral process,” Ajmani said, warning that district attorneys subject to elections often want to appear tough on crime to ensure their political viability. “It shouldn’t be the prosecutor who only has 48 hours to make that decision and is inherently biased to begin with.”
“The absolute reality is that we, as prosecutors, have an immense amount of power in California,” said Patrick McGrath, the Yuba County district attorney. “In some respects, I think almost everybody would agree that the extent of power that we have over charging and case disposition probably really exceeds the amount of power that a judge has.” But McGrath doesn’t think that power is misplaced: He employs direct file in his county and supports its basic premise.
Sunday, September 11, 2016
Is Ohio again about to pioneer a new execution method?
The question in the title of this post is prompted by this Columbus Dispatch article from last week headlined "Ohio looks at nitrogen as a new execution method." Long-time readers may recall, from this post back in 2009, that Ohio was the first state to switch to a one-drug lethal injection protocol after it botch an execution. And, as this new article explains, new problems with lethal injection plans may prompt Ohio to become an execution pioneer again. Here are the details:
Ohio might consider adding nitrogen gas as a new execution method because of problems securing lethal injection drugs.
There have been no executions in the state for 2½ years, largely because of lawsuits and difficulty obtaining drugs for lethal injection. Beginning in January, there are 28 convicted killers with execution dates scheduled over four years.
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said today lethal injection is "stalled" and it's time for a change. Prosecutors have long been strong supporters of Ohio's death penalty law. "I think the legislature ought to recommend another method of execution," Murphy said in an interview. He recommends switching to nitrogen gas, a method he called "humane and reasonably inexpensive."
Nitrogen gas, pumped into an air-tight chamber, produces asphyxiation by a lack of oxygen in the blood. It has not been used for executions, although Oklahoma adopted it as a backup method. The sponsor of the Oklahoma law called it "foolproof." People occasionally die accidentally from nitrogen asphyxiation. Deep-sea divers sometimes suffer from a form of it, producing an effect often described as euphoric. The gas is widely available and inexpensive.
JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the agency "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions." State Rep. Jim Butler, R-Oakwood, chairman of the House Judiciary Committee, said, "It's good to look at alternative methods that are humane. That's something we should definitely do." But Butler added, "One problem is if it's something that's not been tried before, you need to vet it to make sure it's appropriate. It's certainly going to be tested in the court system."
Other states have moved ahead with alternatives. Tennessee permits use of the electric chair, Utah allows the firing squad, and Oklahoma allows nitrogen gas.
Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, said using nitrogen gas could be "dangerous and impractical."
"You and I are breathing 78 percent nitrogen right now," he said. "It's not a poison. It's an inert gas." When nitrogen is introduced, oxygen is pushed out of the bloodstream, causing potentially painful suffocation, Groner said. "I would challenge that it's foolproof. We've heard that before," he said.
NAAUSA sends letter to House members explaining its opposition of federal statutory sentencing reforms
As detailed via some prior posts linked below, the National Association of Assistant US Attorneys (NAAUSA) has been one of the most consistent and vocal opponents of federal statutory sentencing reforms that have been considered in Congress in recent years. And this group has now just posted here via its website a lengthy letter authored by Steven Cook, NAAUSA's President, addressed to members of the US House of Representatives. Here is how the letter begins, its major headings, and its concluding paragraph:
As the voice of career federal prosecutors across the country, we write to make clear our strong and unequivocal opposition to the Sentencing Reform Act of 2015, H.R. 3713. This legislation, and other bills being advanced under the euphemistic label of criminal justice and prison or sentencing “reform,” will seriously undermine our ability to disrupt and dismantle violent gangs, domestic and international drug trafficking organizations, weaken federal firearm laws, and release thousands of violent convicted felons from federal prison. To explain our concern, we would like to make three points.
1. The federal criminal justice system is not broken. ...
2. Over the last decade the federal criminal justice system has been weakened or “reformed” in significant ways, discounting the need for any further reform. ...
3. The historic reduction in violent crime rates has begun to reverse course and in many cities across the country violent crime is skyrocketing. At the same time, we are suffering from the worst opioid epidemic in the history of our Nation. Now is the wrong time to remove or further weaken the very tools that federal prosecutors and law enforcement officers need to stem the tide of rising crime and prosecute domestic and international drug traffickers, violent gangs, and other violent offenders. ...
In conclusion, the federal criminal justice system has been significantly weakened over the last decade, the federal prison population continues to drop, homicide and violent crime rates are spiraling up across the country, and we are in the grip of the worst heroin and opioid epidemic in the history of our Nation. Now is the wrong time to remove or weaken the last tools available to federal prosecutors and law enforcement agents to combat these problems.
Some prior related posts highlighting some NAAUSA advocacy:
- "Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"
- Federal prosecutors group propounds "The Dangerous Myths of Drug Sentencing 'Reform'"
- Sentencing reform group propounds "The Dangerous Myths of NAAUSA"
- "Prosecutors Rally Against Sentencing Reform, Say Build More Prisons"
- NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials
Effective review of notable increase in murders in many cities in 2015 and thereafter
The New York Times has this effective new piece reviewing murder rates and realities in 2015 under the headlne "Murder Rates Rose in a Quarter of the Nation’s 100 Largest Cities." The piece includes lots of interesting graphics and analysis, and here are excerpts:
Murder rates rose significantly in 25 of the nation’s 100 largest cities last year, according to an analysis by The New York Times of new data compiled from individual police departments. The findings confirm a trend that was tracked recently in a study published by the National Institute of Justice. “The homicide increase in the nation’s large cities was real and nearly unprecedented,” wrote the study’s author, Richard Rosenfeld, a criminology professor at the University of Missouri-St. Louis who explored homicide data in 56 large American cities.
In the Times analysis, half of the increase came from just seven cities — Baltimore, Chicago, Cleveland, Houston, Milwaukee, Nashville and Washington. Chicago had the most homicides — 488 in 2015 — far more than the 352 in New York City, which has three times as many people. Baltimore had the largest increase — 133 more than 2014 — and the second-highest rate in 2015, after St. Louis, which had 59 homicides per 100,000 residents.
The number of cities where rates rose significantly was the largest since the height of violent crime in the early 1990s.
Donald J. Trump, the Republican presidential candidate, has said that crime is “out of control” and that decades of progress are now being reversed. But the Times analysis shows that the rise in homicides is much more nuanced; while violence is up in a number of cities, it’s not soaring across the nation. Nationally, homicide rates are still much lower than they were in the 1990s, even among the seven cities that drove last year’s increase....
Nationwide, nearly 6,700 homicides were reported in the 100 largest cities in 2015, about 950 more than the year before. About half of the rise — 480 of the 950 — occurred in seven cities. The poverty rate in these cities is higher than the national average.
At least three of these cities have also been embroiled in protests after police-involved deaths of black males, like Freddie Gray in Baltimore, Laquan McDonald in Chicago and Tamir Rice in Cleveland. In his study, Dr. Rosenfeld said that rising crime might be linked to less aggressive policing that resulted from protests of high-profile police killings of African-Americans. But he said this hypothesis, a version of the so-called Ferguson effect, which has spurred heated debate among lawmakers and criminologists, must be further evaluated.
There is no consensus on what caused the recent spike, and each city appears to have unique circumstances contributing to the uptick. “Cities are obviously heterogeneous,” said Robert Sampson, a Harvard professor who is an expert on crime trends. “There is tremendous variation across the largest cities in basic features such as demographic composition, the concentration of poverty, and segregation that relate to city-level differences in rates of violence.”
Many crime experts warn against reading too much into recent statistics. In fact, murder rates remained largely unchanged in 70 cities, and decreased significantly in five. “Even if the uptick continues in some cities, I doubt the pattern will become universal,” Dr. Sampson said....
Alarming levels of violence have become the norm in some of [Chicago's poorest] neighborhoods. While murder rates have continued to decline in the nation’s two largest cities — New York and Los Angeles — Chicago’s has stalled in the last decade. At its peak in the 1990s, New York’s homicide rate was more than seven times as high as it is now.
In Chicago, however, the landscape appears to be worsening, with killings up more than 45 percent so far this year. In August, Chicago had its deadliest month in about 20 years with at least 90 murders — and more homicides so far this year than New York and Los Angeles combined. Areas with “long-standing conditions of alienation, hopelessness, poverty and lack of opportunities” also have the greatest distrust of the police and the greatest complaints of police abuse, said Craig Futterman, a University of Chicago law professor who directs a civil rights and police accountability project at the law school. That means homicides go unsolved, perpetuating a dangerous cycle because people committing the crimes are still out there. In some neighborhoods, the city’s clearance rate, the percentage of homicides in which the police arrest or identify a suspect, is less than 20 percent, he said.
Dr. Futterman said the city’s problems were intensified in recent years by the closing of more than 50 public schools in 2013, the dismantling of public housing throughout the 2000s, and the federal government’s successful prosecution of big gang leaders, which destabilized gang hierarchies, territories and illegal drug markets. While there was violence before, ironically, crime was more contained and easier to police than it is now, he said.
In 2015, Baltimore’s murder rate not only increased the most among the 100 top cities, it also reached a historic high of 55 homicides per 100,000 residents. Its previous record high was in 1993, when the rate was 48. Some experts attribute the sudden spike in violence largely to a flood of black-market opiates looted from pharmacies during riots in April 2015. The death of Freddie Gray, a young black man who sustained a fatal spinal cord injury in police custody, had set off the city’s worst riots since the death of the Rev. Dr. Martin Luther King Jr.
During the riots, nearly 315,000 doses of drugs were stolen from 27 pharmacies and two methadone clinics, according to the Drug Enforcement Administration, a number much higher than the 175,000 doses the agency initially estimated. Most of the homicides in Baltimore were connected to the drug trade, and what happened in 2015 was a result of more people “getting into the game of selling drugs,” said Jeffrey Ian Ross, a criminologist at the University of Baltimore.
Police commanders have said that an oversupply of inventory from looting resulted in a violent battle for customers among drug gangs. “This would have caused a disruption in drug markets, with more people trying to maintain or increase their market share,” Dr. Ross said. “You have new entrants coming into the field, altering the supply and demand of illegal drugs in those neighborhoods,” often leading to increased violence.
If the drug theory holds true, the killings in Baltimore should subside this year. A midyear violent crime survey by the Major Cities Chiefs Police Association showed that while killings were up among 60 large cities, they were slightly down in Baltimore. “I’m not going to say they’re going to return to historic lows, but we hit a peak last year and things are settling themselves out,” Dr. Ross said.
Saturday, September 10, 2016
Great coverage of awful public defender realities, especially in Louisiana
The Guardian together with the Marshall Project hace done this past week a remarkable series on the remarkable shortage of public defenders in Louisiana. The series is all linked here via The Guardian, under the title "Justice Denied," and with videos and this brief general description: "A three-part series in partnership with the Marshall Project that examines the crisis of America's overburdened public defense systems, including a special report from Louisiana, where years of cuts and inconsistent funding have hit hardest." Here are the full headlines and links to the three parts of the series:
"The human toll of America's public defender crisis Years of drastic budget cuts have created bottomless caseloads for public defenders – the ‘pack mules of the system’ – and tipped the scales of justice against the poor"
"Louisiana public defenders: a lawyer with a pulse will do: In several parishes, real estate and adoption attorneys – and even prosecutors – are filling the gaps left by an unreliable public defense funding program"
Here are snippets from the first of these articles highlighting why we ought not expect improvements to public defender systems anytime soon:
In recent years the US has begun to reckon with its role as the world’s biggest jailer, home to a manifestly unequal justice system that disproportionately punishes poor people of color. In diagnosing the causes of this problem much of the focus has centered on sentencing reform, but in a country where 95% of criminal cases are settled by plea deal, little attention has been given to the critical state of indigent defense. Around the US, defenders routinely report an increase in overburdening and underfunding, caused by a variety of structural, political and economic drivers.
Up-to-date figures are scant, but according to a 2008 estimate by the American Bar Association, state and county governments spent a total of $5.3bn on indigent defense systems a year, just 2.5% of the roughly $200bn spent on criminal justice by states and local government every year. The depth of crisis varies in each state, indicative of the complex patchwork of defense systems that are funded and administered differently dependent on jurisdiction....
Despite the urgency of the crisis, recognized by both the US attorney general, Loretta Lynch, and her predecessor, Eric Holder, the issue remains intractable. Congressional bills offering defender’s offices easier access to federal grant money have gone nowhere.
And in an election year during which Hillary Clinton has explicitly promised to “reform our criminal justice system from end to end”, dealing with the crisis in funding defense of the poorest people coming before the courts does not feature on her platform for change. Donald Trump, who has promised to be “the law and order candidate”, has a vision for reform that goes no further than a vow to appoint “the best prosecutors and law enforcement officials in the country”.
"Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System"
The title of this post is the title of this timely new paper by Mark Osler now available via SSRN. Here is the abstract:
The constitutional pardon power has generated more controversy than mercy over the past three decades. Even President Obama, who has pursued a focused clemency initiative, has struggled to meet historical standards. While changing ideas relating to retribution play a role in this decline, there is another significant factor at play: too much bureaucracy.
Beginning around 1980, a review process has evolved that is redundant and biased towards negative decisions. No fewer than seven levels of review take place as cases course through four different federal buildings, a jagged path that dooms the process. For years, this bureaucracy stymied even President Obama’s intention to reduce prison populations; the relative success of his clemency initiative came despite this bureaucracy, not because of it, and only after seven and a half years of futility.
This article analyzes the development of this system and the problems it creates before offering solutions based on the experience of state governments and President Ford’s successful use of a Presidential Clemency Board.
Friday, September 9, 2016
Accounting for huge modern increase in electronic monitoring of offenders
This short new Pew issue brief provides a fascinating accounting of large modern increase in offender subject to electronic monitoring. The title provides the essential story: "Use of Electronic Offender-Tracking Devices Expands Sharply: Number of monitored individuals more than doubled in 10 years." Here are a few excerpts:
The number of accused and convicted criminal offenders in the United States who are monitored with ankle bracelets and other electronic tracking devices rose nearly 140 percent over 10 years, according to a survey conducted in December 2015 by The Pew Charitable Trusts. More than 125,000 people were supervised with the devices in 2015, up from 53,000 in 2005.
All 50 states, the District of Columbia, and the federal government use electronic devices to monitor the movements and activities of pretrial defendants or convicted offenders on probation or parole. The survey counted the number of active GPS and radio-frequency (RF) units reported by the companies that manufacture and operate them, providing the most complete picture to date of the prevalence of these technologies in the nation’s criminal justice system....
Establishing the exact number of offenders under electronic supervision is difficult, given the decentralized nature of the criminal justice system. Earlier approximations have varied widely. For example, one study estimated that more than 90,000 GPS units were in use nationwide in 2009, while the federal Bureau of Justice Statistics reported that the figure was about 25,000 the same year. Both studies, however, were incomplete. The former did not include a detailed methodology and did not indicate whether it counted only active monitoring devices or inactive ones as well; the latter did not count defendants on pretrial release and relied on the voluntary participation of state and local court and supervision agencies, many of which did not submit information.
To provide a more up-to-date and comprehensive picture, Pew developed a survey of the 11 companies known to manufacture, sell, or operate GPS and RF devices in the United States, including U.S. territories. Seven of the largest companies responded, representing an estimated 96 percent of the market....
The number of accused and convicted criminal offenders monitored with electronic tracking devices in the United States increased 140 percent between 2005 and 2015, from approximately 53,000 to more than 125,000. Extrapolating from the 96 percent market share of the companies that participated in the survey, the 2015 total probably exceeded 131,000.
The survey also shows that a sharp increase in the use of GPS technology accounted for all of the 10-year growth in electronic tracking, more than offsetting a decline in the use of RF devices. In 2015, manufacturers reported that about 88,000 GPS units were being used for supervision of accused and convicted offenders, a thirtyfold increase from the roughly 2,900 reported a decade earlier. By contrast, the number of active RF units fell 25 percent, from more than 50,000 to below 38,000. These findings are consistent with published studies that suggest RF devices are giving way to technology that can track offenders in real time.
Despite the substantial growth of electronic tracking during the study period, it remains relatively rare in the context of the U.S. corrections system. Nationally, nearly 7 million people were in prison or jail or on probation or parole at the end of 2014, but individuals tracked using electronic devices in 2015 represented less than 2 percent of that total. Although some research suggests that electronic monitoring can help reduce reoffending rates, the expanded use of these technologies has occurred largely in the absence of data demonstrating their effectiveness for various types of offenders at different stages of the criminal justice process.
DOJ, wisely in my view, decides to drop prosecution against former Virginia gov Bob McDonnell and his wife
As reported in this Reuters article, "U.S. prosecutors on Thursday dropped corruption charges against former Virginia Governor Robert McDonnell and his wife, bringing to a close a case that tarnished the once-rising star of the Republican Party." Here are more details and context:
"After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further," the U.S. Justice Department said in a statement. In June, the U.S. Supreme Court threw out McDonnell's bribery convictions in a ruling that could make it tougher to prosecute politicians for corruption.
The eight justices, liberals and conservatives alike, overturned McDonnell's 2014 conviction, saying that his conduct fell short of an "official act" in exchange for a bribe as required for conviction under federal bribery law. Jurors had convicted McDonnell for accepting $177,000 in luxury gifts and sweetheart loans to him and his wife Maureen McDonnell from a wealthy Richmond businessman seeking to promote a dietary supplement. He was sentenced to two years in prison but remained free pending appeal.
The case was a rare instance of the nation's highest court reviewing a high-level public official's criminal conviction. The court sent the case back to lower courts to determine if there was sufficient evidence for a jury to convict McDonnell, which had kept alive the possibility of a new trial.
His lawyers applauded the decision, saying in a statement on Thursday: "Governor McDonnell can finally move on from the nightmare of the last three years and begin rebuilding his life." McDonnell served as governor from 2010 to 2014 and once was considered a possible U.S. vice presidential candidate.
His wife was convicted in a separate trial and given a one-year sentence but remained free while pursuing a separate appeal. The Supreme Court ruling effectively applied to Maureen McDonnell too, meaning that her conviction also had to be tossed out....
Legal observers have noted that the Supreme Court ruling opens the possibility that politicians could sell meetings and other forms of access without violating federal law. The decision was criticized by Citizens for Responsibility and Ethics in Washington, a corruption watchdog group. It said in a statement the Justice Department had "sent a clear signal that it would not aggressively enforce corruption laws to hold public officials accountable when they abuse their office.”
As I suggested in this prior post, I am generally pleased that the Justice Department has decided that there is now no real public benefit in continuing to use taxpayer moneys to seek to further condemn and harm former Gov McDonnell and his wife for their various suspect actions.
A few of many prior related post:
- Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges
- Former Virginia Gov McDonnell gets (way-below-guideline) sentence of two years in prison
- Per the Chief, SCOTUS unanimously vacates former Gov's conviction while adopting "more bounded interpretation" of corruption statute
- You be DOJ: after SCOTUS reversal, should former Virginia Gov Bob McDonnell be tried for corruption again?
Thursday, September 8, 2016
Top Texas criminal judges wonders about value of LWOP sentencing and its lesser process
This local article from Texas reports on interesting comments by a top state judge in the state about LWOP sentences. Here are excerpts from the article:
Judge Larry Meyers, the longest-serving member of the state’s highest criminal court, has grown uncomfortable with the way Texas allows for life in prison without parole, calling it a slow-motion death sentence without the same legal protections given to defendants who face the death penalty. It can be argued, Meyers said, that the prospect of decades of prison — ended only by death from old age, medical problems or even violence — is as harsh or harsher than execution.
Even so, life without parole can be given in some capital murder cases without jurors answering two questions that must be considered before issuing a death sentence — is the defendant a future danger to society, and are there any mitigating factors such as mental disability or childhood abuse that weigh against capital punishment?
“I’m not saying the death penalty is unconstitutional. I think right now it’s about as fair as it could be,” Meyers said. “But there are two variations of the death penalty; one is just longer than the other. People are getting a (life without parole) death sentence without the same safeguards and procedures that you get when there is a death sentence.”
Larry Meyers has been a judge on the Texas Court of Criminal Appeals since 1993. Meyers, the only Democrat on the Texas Court of Criminal Appeals, plans to make changing the life-without-parole system an issue of his re-election campaign, an admittedly uphill battle after he switched from the Republican Party in 2013 over disagreements in its direction under the surging tea party movement.
His Republican opponent in the Nov. 8 election, 22-year state District Judge Mary Lou Keel of Houston, believes Meyers has strayed from his principal task as a judge. “Policy issues like this are best left to the Legislature,” Keel said. “Doesn’t he have enough work to do as a judge?”...
Life without parole, an option for capital murder cases since 2005, has been credited with helping to sharply reduce the number of death row inmates by allowing prosecutors to reserve capital punishment for the worst cases, yet ensure that other convicted murderers are permanently removed from society.
Since life without parole became an option, the population of Texas’ death row has fallen to 244 inmates, down about 40 percent, as the pace of executions has outstripped the number of new death sentences. In contrast, 782 inmates were serving life without parole for capital murder as of July 31. An additional 54 inmates are serving life without parole after repeat convictions for sexually violent offenses, including crimes against children, since the Legislature allowed the punishment for the crime of continuous sexual abuse in 2007....
Seeking life without parole is by far the simpler option. Jurors are easier to seat — death penalty opponents aren’t allowed on juries if execution is an option — and there is no punishment phase trial. The appeals process also is less rigorous, with death row inmates granted two appeals before the state’s highest criminal court, while inmates serving life without parole go through the normal process. Meyers, a 23-year member of the Court of Criminal Appeals, believes life without parole has been made too simple, providing “an easy, inexpensive way of getting the death penalty.”
It would be fairer, he said, to let jurors consider some variation of the future danger question and to allow defense lawyers to present mitigating evidence. If jurors cannot agree that life without parole is appropriate, the defendant would get a life sentence and be eligible for parole after 40 years or some other suitable time, Meyers said.
The bigger reform — what Meyers called the “smarter fix” — would be for the Legislature to end capital punishment, making life without parole the ultimate punishment and including an option for parole. The political reality in Texas, by far the nation’s top death penalty state, makes that an extremely unlikely option for legislators, Meyers admits. “But right now, as I see it, there’s just two options — both for death,” he said....
Meyers said his change of heart on life without parole didn’t come about because of appeals. Nobody is going to tell his court that they improperly received a no-parole term when the alternative is a death sentence, he said. Instead, Meyers said, his qualms arose after coming to see the sentence as a delayed death penalty — one that is particularly harsh on young people — when a typical murder conviction is often enough to lock away killers until they are no longer a danger.
When the Legislature debated life without parole in the mid-2000s, prosecutors were divided on the best course to take, but many opposed adding a “long, drawn-out” sentencing hearing to determine the difference between a no-parole sentence and parole eligibility after 40 years, said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. “You could argue that it’s not much difference. It was a lot of squeeze without much juice,” Edmonds said.
In addition, many capital murder cases are decided by a plea bargain that allows defendants to choose perpetual prison time over execution. Some prosecutors feared losing bargaining leverage to a defense lawyer who threatened, for example, to drag out a sentencing hearing for three weeks unless offered a sentence with parole for a lesser crime like murder, Edmonds said.
Life without parole raises questions about whether Texas is imprisoning people long past the point that they “will ever be dangerous,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that provides capital murder legal representation at trial and on appeal. “We’ve got places in prisons that look like nursing homes. It makes me wonder, as a taxpayer, are these people dangerous? Why are we paying the extra cost of imprisoning them when they are geriatrics?” Kase said.
September 8, 2016 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Wednesday, September 7, 2016
Feds file motion seeking to limit how jury might consider mercy in capital trial of Charleston mass murderer Dylann Roof
This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case. Here are the basic details:
Federal prosecutors trying the death penalty case against alleged Charleston church shooter Dylann Roof want to limit the use of “mercy” when he goes on trial later this year. In a new court filing, prosecutors argue that should Roof be convicted, the jury should determine his sentence based on a weighing of the factors for and against — known as aggravating and mitigating factors — the death penalty. Roof is accused of fatally shooting nine people inside the historically black Emanuel AME Church on July 17, 2015.
The prosecutors argue that allowing the defendant to instruct the jury that, regardless of their findings, they are never required to sentence someone to death isn’t consistent with the Federal Death Penalty Act. In arguing against a mercy defense, prosecutors point out that during the sentencing phase of the trial, if it gets to that, the government’s burden is much higher — they must convince the jury to unanimously find that the aggravating factors outweigh the mitigating factors. The defendant’s burden is “significantly lower” — he needs to convince one juror that there is enough mitigating evidence to merit a sentence less than death, such as life in prison without parole.
In the filing, the prosecution did say that mercy may enter into equation when the jury debates aggravating versus mitigating factors. “It is within that context, and that context alone, that mercy may enter into the death penalty process,” the prosecution writes....
Earlier this month, the court revealed that 3,000 people were sent jury summonses notifying them that they are being considered to serve on the jury at Roof’s trial.
This week, a South Carolina circuit court judge set the date for Roof’s state trial, which is expected to be tried after the conclusion of the federal trial. That case, where Roof is also facing the death penalty, is scheduled to begin in late January 2017.
The title of this post is the title of this notable new paper by Eric Fish now available via SSRN. Here is the abstract:
American prosecutors are conventionally understood as having two different roles. They must seek the defendant’s conviction as adversary advocates, and they must also ensure the system’s fairness as ministers of justice. But these two roles are at odds. Legal scholarship and the organized bar try to elide this conflict by describing prosecutors as having a “dual role,” meaning that they must perform both functions. But the resulting role confusion allows adversarial ethics to dominate in practice, leading to excessive punitiveness and wrongful convictions.
This Article argues that the “dual role” model should be scrapped, and that American prosecutors should not be understood as adversary lawyers at all. Certain features of the American system — prosecutorial discretion, the limited role of victims, and the resolution of nearly all cases through plea bargain agreements — make it inappropriate, indeed dangerous, for American prosecutors to behave like partisan lawyers.
In seeking to move beyond the “dual role” model, this Article distinguishes three possible roles for prosecutors. The first is adversarialism, in which a prosecutor exercises their discretion strategically in order to win convictions and punishments. The second is legal neutrality, in which a prosecutor behaves like a disinterested adjudicator whose decisions are dictated by established rules. The third is value weighing, in which a prosecutor exercises their discretion by choosing among a limited set of public values that are implicit in our legal institutions.
The Article ultimately argues that the American prosecutor’s role should be understood as combining the logics of legal neutrality and value weighing. When there is a binding rule and the prosecutor lacks discretion, they should act as a neutral conduit for the established legal principles. And when the prosecutor faces a discretionary choice, they should act as an executive official committed to implementing a certain normative vision of justice. But the prosecutor should never act as an adversary committed to winning for its own sake. The Article also considers how the institutional structure of prosecutors’ offices, and the professional incentives that prosecutors face, might be reformed in order to accommodate such a non-adversarial role.
Rounding up some recent commentary on recent Brock Turner controversies
Folks who following notable sentencing stories, and the notable reactions from various folks to notable sentencing stories, surely know the name Brock Turner. And recent developments in his sentencing saga have prompted another round of useful commentary from various sources. Here is a sample of this commentary, via links and full headlined:
From Mic here, "Brock Turner just registered as a sex offender. Here's what that means for him."
From The National Review here, "California Democrats Suddenly Think Mandatory Minimums Are a Good Idea"
From Slate here, "The Armed Protests Outside Brock Turner’s Home Are Dangerously Counterproductive"
From Vox here, "The justice system needs to take rape more seriously. That doesn’t mean longer prison sentences."
Some (of many) prior related posts on the Brock Turner case:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
- California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
En banc Third Circuit find as-applied Second Amendment violation in federal firearm prohibition for certain criminals
Long-time readers know that I have been expressing constitutional concerns about broad federal criminal firearm prohibitions even since the Supreme Court in Heller decided that the Second Amendment includes an individual constitutional right to keep arms. Today, the Second Amendment took a bite into federal firearm laws via a fractured Third Circuit opinion that runs 174 pages(!) in a case that might now be headed to the Supreme Court. Here is how the en banc ruling in Binderup v. US AG, No. 14-4550 (3d CIr. Sept. 7, 2016) (available here) gets started:
Federal law generally prohibits the possession of firearms by any person convicted in any court of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Excluded from the prohibition is “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Id. § 921(a)(20)(B). And there is also an exemption for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored,” where the grant of relief does not expressly preserve the firearms bar. Id. § 921(a)(20).
In United States v. Marzzarella we adopted a framework for deciding facial and as-applied Second Amendment challenges. 614 F.3d 85 (3d Cir. 2010). Then in United States v. Barton we held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face, but we stated that it remains subject to as-applied constitutional challenges. 633 F.3d 168 (3d Cir. 2011).
Before us are two such challenges. In deciding them, we determine how a criminal law offender may rebut the presumption that he lacks Second Amendment rights. In particular, a majority of the Court concludes that Marzzarella, whose two-step test we reaffirm today, drives the analysis. Meanwhile, a separate majority holds that the two as-applied challenges before us succeed. Part IV of this opinion sets out how, for purposes of future cases, to make sense of our fractured vote.
Tuesday, September 6, 2016
You be DOJ: after SCOTUS reversal, should former Virginia Gov Bob McDonnell be tried for corruption again?
The "you-be-the-judge"-type question in the post is prompted by this Washington Post article headlined "U.S. attorney’s office recommends putting Robert McDonnell on trial again." Here is the basic context:
Less than three months after the Supreme Court vacated the convictions of former Virginia governor Robert F. McDonnell, the U.S. attorney’s office that prosecuted the Republican has recommended to Justice Department higher-ups that they endeavor to try him again, according to people familiar with the case.
The recommendation from the U.S. attorney’s office in the Eastern District of Virginia does not guarantee that McDonnell will once again have to battle corruption charges in court. The decision ultimately rests with senior officials at the Justice Department, including the deputy attorney general and possibly the attorney general. But it is a significant step that demonstrates how despite a Supreme Court ruling upending McDonnell’s convictions and significantly narrowing what can be considered public corruption, the prosecutors who convinced jurors that he was guilty the first time believe they could do it once more.
An attorney for McDonnell, a Justice Department spokeswoman and a spokesman for the U.S. attorney’s office all declined to comment. Asked in an interview earlier this week whether she would accept the recommendation of prosecutors who handled the case — whatever that might be — Attorney General Loretta E. Lynch said, “That’s working its way through the process, so I’m not able to give you a comment on that.”
Prosecutors have until Sept. 19 to formally inform the U.S. Court of Appeals for the 4th Circuit what they intend to do and — if they are going forward — to set a briefing schedule.
McDonnell and his wife, Maureen, were convicted in 2014 of public corruption charges after jurors concluded that they lent the power of the governor’s office to Richmond business executive Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods. Prosecutors alleged that the McDonnells helped Williams specifically by arranging meetings for him with other state officials and allowing him to host an event at the governor’s mansion to promote a product he was trying to sell. In one case, prosecutors alleged, the governor pulled out a bottle of that supplement, Anatabloc, and told other state officials that it worked for him....
Justice Department officials are probably weighing not only whether a case could be brought again but also whether it should. McDonnell’s first trial spanned five weeks, and it came after months of bitter and time-consuming pretrial litigation. Four prosecutors in the Eastern District of Virginia and the Justice Department’s public integrity section were consumed by it. McDonnell was ultimately sentenced to two years in prison; his wife to a year and a day.
And from the case came a unanimous Supreme Court ruling that experts say makes prosecuting politicians on corruption charges substantially more difficult than it was before. It is possible more successful challenges could lead to a further narrowing of corruption laws and hamper other investigations. The Supreme Court’s ruling dealt a critical blow to the case against McDonnell but not an immediately fatal one. The court decided that jurors were wrongly instructed on the meaning of the term “official act” — the thing that prosecutors were required to prove McDonnell did or tried to do for Williams in exchange for the businessman’s favors — and offered a definition far more narrow than what jurors had considered....
McDonnell’s defense attorneys had wanted the case to be thrown out wholesale on the grounds that prosecutors had presented insufficient evidence of an official act. But the Supreme Court declined to do that, saying both sides had not had an opportunity to address the question in light of the court’s clarified definition.
And the opinion offered a possible way forward. While setting up meetings or calling other government officials could not be official acts by themselves, Roberts wrote, they could serve as evidence of an agreement to perform such an act — if, for example, jurors concluded the meeting helped show an official was attempting to pressure or advise another official to do something more....
If the Justice Department allows prosecutors to go forward, they will first have to convince the U.S. Court of Appeals for the 4th Circuit that there is enough evidence to proceed — which is no guarantee. That decision itself could be appealed to the Supreme Court. And if they ultimately go to another trial, prosecutors would have to recalibrate how they present their case, focusing less on the meetings and events themselves than on how they show that Williams and McDonnell had broader plans. That will not be easy. Roberts noted in the opinion that several McDonnell subordinates had testified at trial that the governor “asked them to attend a meeting, not that he expected them to do anything other than that.”
For a variety of reasons, I am inclined to conclude that the former Gov has, at least in some sense, already been punished enough. And, I am especially inclined to say I am not so keen on having the feds spend a lot more of my tax dollars going hard again after someone who poses no threat to public safety. But perhaps others view public corruption concerns differently, and thus the sincere question in the title of this post.
"What Lurks Below Beckles"
The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Shakeer Rahman. Here is the abstract:
The Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review. Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well. But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will mean nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s. This is due to a number of a circuit splits that the Supreme Court may not get an opportunity to address after the Beckles case.
The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them. Doing so may be the only way to ensure that prisoners — particularly those in the Eleventh Circuit — will have a remedy for their unlawful sentences and to ensure that any right announced in Beckles applies uniformly across the country.
While the Court typically limits itself to analyzing questions that are directly raised in the petition for certiorari, AEDPA is a reason the Court should depart from that practice here. Two decades ago, when the Supreme Court upheld AEDPA’s restrictions post-conviction review, several Justices warned that circuit splits related to successive motions might re-open the question of whether AEDPA’s restrictions are constitutional. As we show below, the aftermath of Johnson and Welch in the lower courts is what those Justices warned about. These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions that are not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.
New York Times editorial spotlights "The Injustice of Making Kids Pay"
This new editorial from the Gray Lady highlights a new report that laments the imposition of economic sanctions on juve offenders and their families. Here are excerpts (with links from the original):
It takes a lot these days to surprise anyone with the irrationalities of the American criminal justice system, rife as it is with harsh and counterproductive practices that do little or nothing to improve lives or keep the public safe. But a new report, published by the Juvenile Law Center, shocks nonetheless. It illustrates the destructive results of charging court fees and fines to juveniles, many of whom come from impoverished families.
Courts impose costs on defendants in all 50 states and the District of Columbia to cover all sorts of expenses — day-to-day courtroom operations, drug and mental-health tests, even public defenders, who exist solely to represent people who can’t afford a lawyer. These charges, which mount quickly, are disruptive enough for lower-income adults who are trying to get their lives back on track. They can be an even heavier burden on juveniles, one million of whom find themselves in court each year.
When these young people or their families fail to pay, they may end up behind bars, be forced to return to court over and over again, or have their driver’s licenses suspended, making it harder for them to go to school or work. Families that are already struggling to get by may have to decide between paying the courts or buying food and clothing.
Absurdly, 11 states even charge to expunge a juvenile record, which is a major obstacle to a young person’s ability to get into college, land a job or find a place to live.
In general, the report found, these burdens — many ostensibly aimed at deterring crime — have the opposite effect: By saddling young people with piles of debt they cannot pay, they increase the likelihood that juveniles will wind up in trouble with the law again. And like so much else about the criminal justice system, these costs fall most heavily on poor and nonwhite juveniles. As one of the report’s authors put it, “Asking people to pay what they don’t have doesn’t help anyone.”
Monday, September 5, 2016
A not-so-deadly summer: only one US execution from Memorial Day to Labor Day
I have been fascinated to see Texas courts, as detailed here by the Death Penalty Information Center, intervene to stay roughly a half-dozen scheduled executions in the state in the summer months. Consequently, as detailed on this DPIC executions page, on this Labor Day as we mark the unofficial end to the summer, throughout the United States there was only one completed execution in the months of June, July and August.
A quick review of yearly execution lists leads me to think that it has been more than three decades since the US had a year in which so few murderers had their death sentences carried out in the summer months. Thus, for those rooting for the death of the death penalty, I think this Labor Day there is a notable milestone to celebrate.
Sunday, September 4, 2016
"The 'Cost of Crime' and Benefit-Cost Analysis of Criminal Justice Policy: Understanding and Improving Upon the State-of-The-Art"
The title of this post is the title of this notable new paper authored by Mark Cohen and available via SSRN. Here is the abstract:
The use of benefit-cost analyses by criminal justice researchers has slowly been increasing over the past 30 years. While still in its infancy, benefit-cost analyses of criminal justice policies have recently moved from the academic arena to actual use by policy makers. The growing use of benefit-cost analysis in crime policy tends to be lauded by economists; however, criminologists and legal scholars are less than unanimous in their views. A recent issue of Criminology and Public Policy on the “Role of the Cost-of-Crime Literature,” highlights this controversy.
Two main themes can be distilled from critiques of the literature: first, the considerable uncertainty that exists in cost and benefit estimates; and second, the fact that important social costs are not being taken into account in current models. A related critique is that current methodologies to estimate the cost of crime are affected by income; bringing with it a concern that criminal justice policies based on a benefit-cost analysis will favor the rich.
This research note addresses these broad questions about the role of benefit-cost analysis in the criminal justice policy arena and attempts to clear up some misunderstandings on the methodologies used to estimate the cost of crime. I also highlight some of the most important gaps in the literature for those interested in helping to improve the state-of-the-art in estimating the “cost of crime.” Perhaps equally important, I hope to demystify benefit-cost analysis and unmask it for what it really is — an important tool that can help policy makers systematically and transparently assess and compare options with the goal of making better policy decisions.
SCOTUSblog examining "The Court after Scalia"
As introduced in this post, the fine folks at SCOTUSblog are doing an online symposium looking at "The Court after Scalia." Here is part of how Amy Howe introduces the pieces that follow:
With Senate Republicans still refusing to act on President Barack Obama’s nomination of Chief Judge Merrick Garland to succeed Scalia, it has become even more clear that the question of who will fill the vacancy hinges on the 2016 presidential election. If Hillary Clinton is elected, the conventional wisdom goes, either Garland or someone else nominated by Clinton will replace Scalia, and the Court will generally move to the left. But if instead Donald Trump is elected and nominates a candidate to succeed Scalia, the conventional wisdom posits, the balance on the Court will stay more or less the same.
The conventional wisdom may well be true for the Court as a whole. But what does it mean for some of the high-profile issues — affirmative action, gun control, reproductive rights, and the death penalty, to name just a few — on which the Court has ruled or may rule in the years to come? We are delighted to kick off today a symposium that seeks to answer that question. Over the next few weeks, guest authors will explore the impact that a conservative or liberal nominee might have on some of these areas of the law.
And here are a few of the symposium posts on criminal law and other topics certainly worth checking out:
Saturday, September 3, 2016
"State Bans on Debtors' Prisons and Criminal Justice Debt"
The title of this post is the title of this article by Christopher Hampson recently posted to SSRN. Here is the abstract:
Since the 1990s, and increasingly in the wake of the Great Recession, many municipalities, forced to operate under tight budgetary constraints, have turned to the criminal justice system as an untapped revenue stream. Raising the specter of the “debtors’ prisons” once prevalent in the United States, imprisonment for failure to pay debts owed to the state has provoked growing concern in recent years. Existing approaches have failed to recognize an alternate potential font of authority: state bans on debtors’ prisons, enacted over several decades in the first half of the nineteenth century, as a backlash against imprisonment for commercial debt swept the nation. This Note takes a first pass at this missing constitutional argument.
New York Times highlights modern rural incarceration realities
After various overseas internet struggles, I have been able to get on-line long enough to spotlight this great front-page article from Friday's New York Times about rural criminal justice headlined "This small Indiana county sends more people to prison than San Francisco and Durham, N.C., combined. Why?". Here is the start of a lengthy article that merits a full read:
Donnie Gaddis picked the wrong county to sell 15 oxycodone pills to an undercover officer. If Mr. Gaddis had been caught 20 miles to the east, in Cincinnati, he would have received a maximum of six months in prison, court records show. In San Francisco or Brooklyn, he would probably have received drug treatment or probation, lawyers say.
But Mr. Gaddis lived in Dearborn County, Ind., which sends more people to prison per capita than nearly any other county in the United States. After agreeing to a plea deal, he was sentenced to serve 12 years in prison. “Years? Holy Toledo — I’ve settled murders for a lot less than that,” said Philip Stephens, a public defender in Cincinnati.
Dearborn County represents the new boom in American prisons: mostly white, rural and politically conservative. A bipartisan campaign to reduce mass incarceration has led to enormous declines in new inmates from big cities, cutting America’s prison population for the first time since the 1970s. From 2006 to 2014, annual prison admissions dropped 36 percent in Indianapolis; 37 percent in Brooklyn; 69 percent in Los Angeles County; and 93 percent in San Francisco.
But large parts of rural and suburban America — overwhelmed by the heroin epidemic and concerned about the safety of diverting people from prison — have gone the opposite direction. Prison admissions in counties with fewer than 100,000 people have risen even as crime has fallen, according to a New York Times analysis, which offers a newly detailed look at the geography of American incarceration.
Just a decade ago, people in rural, suburban and urban areas were all about equally likely to go to prison. But now people in small counties are about 50 percent more likely to go to prison than people in populous counties. The stark disparities in how counties punish crime show the limits of recent state and federal changes to reduce the number of inmates. Far from Washington and state capitals, county prosecutors and judges continue to wield great power over who goes to prison and for how long. And many of them have no interest in reducing the prison population.
“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.” He added in an interview: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”
But many criminal justice experts say that the size of the disparities undercuts the basic promise of equal protection under the law.
“Letting local prosecutors enforce state laws differently throws all notions of equality under the law out the window,” said Peter Wagner, executive director of the Prison Policy Initiative, which advocates reducing incarceration rates. “This data puts governors and legislative leaders on notice that if they want to put criminal justice reforms into effect, they need to look at how prosecutors use and abuse their discretion.”
Thursday, September 1, 2016
Light blogging while overseas...may now prove to be unavoidable due to a balky Internet/computing issues. But I hope to keep up with any major news, and perhaps we can all benefit from a break from sentencing stories over a long holiday weekend.
Wednesday, August 31, 2016
Clemency advocate explains her view on "How to inspire criminal justice reform"
The title of this post is drawn in part from the headline of this lengthy new CNN commentary authored by Brittany K. Barnett-Byrd, whom CNN describes as "an attorney and criminal justice reform advocate [who] has handled several successful clemency petitions, including the nationally reported cases of Sharanda Jones and Donel Clark." Here are excerpts from her commentary:
As the daughter of a formerly incarcerated mother, I know that when one person goes to prison, the whole family goes to prison. Mass incarceration has devastated families and communities across America. The United States makes up nearly 5% of the world's population and almost 25% of the world's prison population. Today, there are over 2.2 million people incarcerated in this country.
The dramatic growth in incarceration as a result of the failed war on drugs cannot be ignored. At the state level, the number of people in prison for drug offenses has increased tenfold since 1980. In addition, nearly half of all federal prisoners are serving time for drugs.
While the statistics are astonishing, to truly understand the issue, we must look beyond the numbers and see the human capital sacrificed in the name of misguided appeals for law and order. The human element is rarely addressed but is necessary to inspire and drive the change needed to reform our criminal justice system.
#17061-112. This number was assigned to my client Corey Jacobs 17 years ago when he began serving a life sentence in federal prison for nonviolent drug convictions. Corey had no prior felony convictions. But with no parole in the federal system, he has been fundamentally condemned to die in prison.
Over two decades ago, Corey, now 47, began dealing drugs with a small group of college friends in Virginia. Though Corey was not a kingpin, he received an essential death sentence largely because three of his co-conspirators testified against him in exchange for reduced sentences. Due to federal laws, Corey was held accountable for all "reasonably foreseeable" quantities of drugs attributed to the five other people involved in the conspiracy. Absolutely no dimension of his conduct was violent.
Despite facing the grim reality of dying in prison, Corey has worked diligently to prove that he is deserving of a second chance. He has devoted himself to extensive rehabilitative programming, completed three self-improvement residential programs and received over 100 learning certificates that have enhanced his education and personal development....
While there is little doubt that a prison sentence was warranted in Corey's case, he doesn't deserve to die in a cell because of it. Life in prison without the possibility of parole is, short of execution, the harshest punishment available in America. It screams that a person is beyond hope, beyond redemption. It suffocates mass potential as it buries people alive. And, in Corey's case, it is a punishment that does not fit the crime.
Recently, I went to visit Corey in prison to discuss his pending clemency petition. As I sat in the bleak, cold concrete interior of the attorney-client visiting room, I was struck by Corey's remorse, intelligence and dedication to bettering himself. I learned Corey is an avid meditator. He mentioned how he once read nature could enhance the meditation experience, but he had not seen a tree in years. The prison yard is surrounded by daunting, gray brick buildings. The rest of our conversation was a blur because I could not move past the fact that he had not seen a tree. A tree.
Though I never imagined that visiting a United States Penitentiary would change the trajectory of my legal career, the state of consciousness I achieved after meeting Corey empowered me. I no longer wanted to be just a lawyer. I wanted to use this platform to promote the greater good. Because of thousands of cases like Corey's, three months ago I resigned from my corporate law job to become a full-time advocate for criminal justice reform....
Last year the Sentencing Reform and Corrections Act of 2015 (S. 2123) was introduced into Congress. This crucial bill would pull back mass incarceration and save taxpayers billions of dollars by reducing mandatory minimums and making the Fair Sentencing Act of 2010 retroactive. And yet despite unprecedented bipartisan support, it still has not come to the Senate floor for a vote. We must urge Congress to pass this overdue, life-changing legislation.
But Congress is not the only branch of government beginning to address this injustice. Obama has shown he is committed to reinvigorating the clemency process through his administration's groundbreaking initiative to prioritize clemency applications for individuals like Corey....
Our criminal justice system is tangled in overcrowded prison cells, draconian sentences, shameful sentencing disparities, burdensome incarceration costs and heartbroken children and families. Reform is desperately needed. The time is now for the people who hold the levers of power to believe in humanity and to simply do the right thing. After all, there is nothing more urgent than freedom.
Latino legislator group calls for ending the death penalty
As reported in this NBC News piece, a "group of Latino legislators passed a resolution demanding the end of the death penalty in the United States because it disproportionately affects people of color of all ages." Here is more:
The National Hispanic Caucus of State Legislators said there is disproportionate punishment for Latinos, Black Americans and Native Americans. "The disproportionate and prejudicial application of the death penalty towards Latinos and other minorities, the high costs of this cruel and unusual punishment to our tax payers and the increasing likelihood that innocent people can be wrongfully executed by the states — among many other compelling reasons — led us to raise our voices to call for an end to capital punishment," said NHCSL President and Pennsylvania State Representative Ángel Cruz in a statement.
The non-profit, non-partisan group is made up of 320 Hispanic legislators in the U.S., Puerto Rico and the Virgin Islands. "Black, Latino, Native Americans, and all people of color are sentenced to longer prison terms, more likely to be tried as an adult, and are more likely to be sentenced to death in the USA," the resolution reads.
The resolution asks the U.S. congress and local municipalities to search for alternatives to combating violence and repeal the death penalty. The group points out that death penalty cases often cost taxpayers millions of dollars — an Urban Institute study found death penalty cases cost an average $3 million per trial, nearly three times as expensive as a trial without the possibility of a death penalty. "We cannot allow more government dollars to be diverted to killing people, instead of investing them in prevention, rehabilitation, and effective crime fighting measures that ensure greater safety in our communities," Cruz stated....
Rep. Dan Pabón, D-Colorado, said the death penalty is the "civil rights issue of our time."
"Even if repealing the death penalty results in one innocent life being saved, it's worth it. Our criminal justice system should focus on 'justice,'" Pabón said.
As I noted in this prior post, because Latinos make up nearly 40% of the population in California, how they cast their votes in this November's death penalty reform/repeal initiative battle is going to play a huge rule in the future of the death penalty in that state. But, if they focus a bit on the fuzzy thinking of Rep. Dan Pabón, they might end up being inclined to vote in favor of retaining the death penalty. Though the evidence about the deterrence effective of the death penalty are mixed, I think it is likely folks think that the death penalty is more likely to save innocent lives than to end them. For that reason (and because many think justice supports capital punishment for the worst murderesrs), I am not sure he is making a strong argument for repeal.
In addition, I cannot help but find remarkable the assertion that the death penalty, which impacts at most a few dozen people of color each year, should be considered the "civil rights issue of our time." I guess the Representative must think that all the other civil rights issues that impact tens of millions of individuals in the US are now all squared away.
"The Value of Confrontation as a Felony Sentencing Right"
The title of this post is the title of this new paper authored by Shaakirrah Sanders now available via SSRN. I have had a grand time earlier this week digging into the historic decision in Williams v. New York, so this article strikes me as especially timely. And here is its abstract:
This Article advocates recognition of the Sixth Amendment's Confrontation Clause as a felony sentencing right. Williams v. New York -- the most historic case on the issue of confrontation rights at felony sentencing -- held that cross-examination was not required to test the veracity of information presented at sentencing hearings, should constitute the beginning of the debate on the issue of confrontation rights at felony sentencing, not the end. Williams was decided before incorporation of the Sixth Amendment's Confrontation Clause and reflects a sentencing model that assumes judicial authority to consider un-cross-examined testimony for purposes of fixing the punishment. This assumption may be unwarranted in light of recent jurisprudence on founding era criminal procedure rights at felony sentencing. Moreover, the standard that applied to confrontation rights at the time of Williams has been reformed and establishes that where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. While this jurisprudence has only been applied during the trial, it can be practically and efficiently applied at felony sentencing.
The Sixth Amendment's other clauses give reason to value confrontation as a felony sentencing right. The structurally identical Jury Trial and Counsel Clauses have rejected the “trial-right-only” approach to Sixth Amendment rights. The Counsel Clause applies to all “critical stages” of the “criminal prosecution” which includes sentencing. The Court recently expanded the Jury Trial Clause to any fact that increased the statutory maximum or minimum punishment. In light of this jurisprudence and the growing importance of sentencing hearings, a framework should and can be established to distinguish between sentencing evidence that should be cross-examined and sentencing evidence that should not be cross-examined. This Article concludes that confrontation should apply to evidence that is material to punishment and where cross-examination will assist in assessing truth and veracity.
Highlighting who is using money to highlight (and try to change) prosecutors' impact on criminal justice and its reform
This new Politico article highlights the role being a played by a notable political actor in funding efforts to charge via the polls some notable criminal justice articls. The article is headlined "George Soros' quiet overhaul of the U.S. justice system: Progressives have zeroed in on electing prosecutors as an avenue for criminal justice reform, and the billionaire financier is providing the cash to make it happen." Here is how it starts:
While America’s political kingmakers inject their millions into high-profile presidential and congressional contests, Democratic mega-donor George Soros has directed his wealth into an under-the-radar 2016 campaign to advance one of the progressive movement’s core goals — reshaping the American justice system. The billionaire financier has channeled more than $3 million into seven local district-attorney campaigns in six states over the past year — a sum that exceeds the total spent on the 2016 presidential campaign by all but a handful of rival super-donors.
His money has supported African-American and Hispanic candidates for these powerful local roles, all of whom ran on platforms sharing major goals of Soros’, like reducing racial disparities in sentencing and directing some drug offenders to diversion programs instead of to trial. It is by far the most tangible action in a progressive push to find, prepare and finance criminal justice reform-oriented candidates for jobs that have been held by longtime incumbents and serve as pipelines to the federal courts — and it has inspired fury among opponents angry about the outside influence in local elections.
“The prosecutor exercises the greatest discretion and power in the system. It is so important,” said Andrea Dew Steele, president of Emerge America, a candidate-training organization for Democratic women. “There’s been a confluence of events in the past couple years and all of the sudden, the progressive community is waking up to this.”
Soros has spent on district attorney campaigns in Florida, Illinois, Louisiana, Mississippi, New Mexico and Texas through a network of state-level super PACs and a national “527” unlimited-money group, each named a variation on “Safety and Justice.” (Soros has also funded a federal super PAC with the same name.) Each organization received most of its money directly from Soros, according to public state and federal financial records, though some groups also got donations from nonprofits like the Civic Participation Action Fund, which gave to the Safety and Justice group in Illinois.
UPDATE: Though this Politico article does not indicate if Soros spent money trying to take down Florida prosecutor Angela Corey, this local Florida article reports on her notable primary loss yesterday starting this way:
Melissa Nelson, an unknown corporate lawyer and former prosecutor three months ago, cleared her path to become one of the most powerful and influential figures in Northeast Florida on Tuesday night when she easily defeated incumbent 4th Judicial State Attorney Angela Corey.
The election caps a dizzying rise for Nelson and an equally shocking fall for Corey, one of the most polarizing political figures in Jacksonville history who generated national attention and enormous criticism for her prosecutions of George Zimmerman, Marissa Alexander, 12-year-old Cristian Fernandez and many others. Corey will depart office in the first week of January as the first incumbent state attorney in modern history to lose a contested election.
Tuesday, August 30, 2016
Continuing his notable clemency momentum, Prez Obama grants 111 more commutations
As reported in this new NPR piece, "President Obama shortened the prison sentences of 111 inmates Tuesday, including 35 people who had expected to spend the rest of their lives in federal custody, authorities told NPR." Here is more about today's exciting clemency news and its context:
Word of the new batch of clemency grants came as the second-in-command at the Justice Department told NPR that lawyers there have worked through an enormous backlog of drug cases and, despite doubts from prisoner advocates, they will be able to consider each of the thousands of applications from drug criminals before Obama leaves office in 2017.
"At our current pace, we are confident that we will be able to review and make a recommendation to the president on every single drug petition we currently have," Deputy Attorney General Sally Q. Yates said.
The early releases apply to mostly non-violent drug offenders who would have received lighter punishments if they committed the same crimes today. The new commutations mean this White House has granted 673 commutations, more than the past 10 presidents combined. Tuesday's grants follow 214 more earlier this month.
In February the new pardon attorney, Robert Zauzmer, asserted that stacks of petitions would not be left on his table next year. But that had long been in doubt. After the Justice Department and the White House launched the initiative for drug offenders about two years ago, white collar criminals, sex predators and violent criminals sent their applications, too. Those petitions flooded volunteer lawyers and officials in the Office of Pardon Attorney. The pardon attorney, Deborah Leff, ultimately resigned after raising alarms about insufficient resources to do the job, which she said could "change the lives of a great many deserving people."
Lawyers working for prisoners said there's still a lot more work for the administration to do. Mark Osler, who led an effort by three dozen law professors and advocates to get the White House to pick up the pace, estimated that 1,500 drug prisoners should win commutations based on the administration's criteria. By his math, that means the president has not yet moved on more than half of the inmates who should win shorter sentences....
In an interview, White House Counsel Neil Eggleston said the president gives each request a special, individualized review, keeping in mind their crimes, their record in prison and whether they merit a second chance, to walk their grandchildren to school or hug their families. Eggleston said the president "doesn't think of it as a number he wants to reach."
"The president's view is that he would like to grant as many worthy petitions as get to his desk and I think he's going to tell me to put worthy petitions on his desk until the last day, and that's what I intend to do," Eggleston said.
Eggleston has this new posting at the White House blog with the chart reprinted here under the heading "President Obama Grants 111 Additional Commutations, the Most Commutations Granted in a Single Month." Here are excerpts:
Earlier this month, President Obama granted commutation to 214 federal inmates, the most commutations granted in a single day by any President in this nation’s history. With today’s additional 111 grants, the President has commuted the sentences of 325 people in the month of August alone, which is the greatest number of commutations ever granted by a president in a single month. The 325 commutations the President has granted in just one month is more than any president granted in a single year for nearly a century.
Today’s 111 commutation grants underscore the President’s commitment to using his clemency authority to provide a second chance to deserving individuals. To date, President Obama has granted 673 commutations: more commutations than the previous ten presidents combined. More than one-third of the President’s commutation recipients, or 232 individuals, were serving life sentences....
While I expect that the President will continue to grant commutations through the end of this administration, the individualized nature of this relief highlights the need for bipartisan criminal justice reform legislation, including reforms that address excessive mandatory minimum sentences. Only the passage of legislation can achieve the broader reforms needed to ensure our federal sentencing system operates more fairly and effectively in the service of public safety.
Split en banc Seventh Circuit ruling, previewing coming Beckles debate before SCOTUS, applies Johnson to career-offender guidelines
As regular readers may recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines. As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines.
In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline. But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.
As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett has not led to its reconsideration. As blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline. Continuing my friendly ways in this setting, I had the honor and pleasure to work with Carissa Hessick and Leah Litman on this new SCOTUS Beckles amicus brief explaining why we think the US Sentencing Guidelines are subject to vagueness challenges and why any ruling that a guideline is unconstitutionally vague should be made retroactive.
Though folks interested in a full understanding of the Beckles case might read all the extant SCOTUS briefing, folks interested in understanding the substantive highlights and the basic arguments on both sides of this intricate and important story can now just turn to the split en banc ruling of the Seventh Circuit yesterday in US v. Hurlburt, No. 14-3611 (7th Cir. Aug. 29, 2016) (available here). Here are two key paragraphs from the start of the majority opinion (per Judge Sykes) in Hurlburt:
The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g) violations. 18 U.S.C. § 924(e)(2)(B). One year ago the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The question here is whether Johnson’s holding applies to the parallel residual clause in the career offender guideline. An emerging consensus of the circuits holds that it does. See infra pp. 16–17.
In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent — namely, United States v. Tichenor, 683 F.3d 358, 364–65 (7th Cir. 2012) — holds that the Guidelines are not susceptible to challenge on vagueness grounds. But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning. Accordingly, we now overrule Tichenor. Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.
And here are a few key paragraphs from the dissenting opinion (per Judge Hamilton) in Hurlburt:
The doctrinal foundation of the majority opinion is inconsistent with the overall sweep of Supreme Court decisions following United States v. Booker, 543 U.S. 220 (2005), which held the Guidelines advisory as the remedy for the Sixth Amendment problems with mandatory sentencing rules that require judicial fact‐finding. Since Booker, the Supreme Court has been trying to maintain a delicate balance, recognizing that the difference between “binding law” and “advice” depends on the different standards of appellate review. See Gall, 552 U.S. at 50–51....
If the Supreme Court extends the rationale of Peugh, as the majority does here, and embraces wholeheartedly the concept that the Guidelines are like laws, that result would be difficult to reconcile with the Booker remedy, which spared the Guidelines from Sixth Amendment challenges by making them advisory. The delicate doctrinal balance the Court has tried to maintain since Booker would be threatened by extending vagueness jurisprudence to the advisory Guidelines.
August 30, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)
Lameting modern parole practices while making a case that "Jailing Old Folks Makes No Sense"
The quoted title of this post is the headline of this new New York Times op-ed authored by Geraldine Downey and Frances Negrón-Muntaner. But, as these extended excerpts from the commentary highlight, the piece is mostly focused on problems with modern parole decision-making:
In 1980, the methadone clinic that had been treating Gloria Rubero as an outpatient dropped her. She was soon desperate for drugs. In August that year, she and an associate took part in a burglary that went wrong and led to the murder of an elderly neighbor. Ms. Rubero was arrested three days later, and was eventually convicted of robbery and second-degree homicide. The judge at Ms. Rubero’s trial gave her an indeterminate sentence of 20 years to life.
At the start of her jail term, Ms. Rubero felt suicidally depressed. But over time, she devoted herself to helping others. In 1985, she became a founding member of the Youth Assistance Program and logged more than 200 hours of speaking to at-risk youth on the harshness of prison life.... Ms. Rubero also got an education: earning, first, her G.E.D.; and then, between 1992 and 1993, an associate in arts and a bachelor of science from Mercy College, in Dobbs Ferry, N.Y. She even made the dean’s list. [S]he also joined the maintenance staff, and excelled at electrical and plumbing work [and later] was accorded the very rare privilege of carrying tools like craft knives, screwdrivers and wire cutters.
Despite this record of rehabilitation, she was denied parole five times in a period of six years. Each time, the parole board concluded that Ms. Rubero could not be granted parole because the “serious” and “violent” nature of her crimes made her release “incompatible with the welfare and safety of the community.” In 1999, Ms. Rubero suffered several major strokes, and at a subsequent parole board hearing, she was unable to walk or talk. Yet she was still considered a danger to the community, and her application was denied. Ms. Rubero gradually recovered, and finally, after her sixth hearing, was granted parole and walked out of prison. She was 56 and had spent 26 years behind bars.
Many incarcerated people would be the first to acknowledge the pain and loss their crimes caused. But if prisoners older than 50 have served decades-long sentences and have shown evidence of rehabilitation, the only rationale for holding them appears to be endless punishment and retribution.
The problem is growing as the American prison population gets grayer. By 2012, there were almost 125,000 inmates age 55 and older out of a total population of 2.3 million. Even as the overall prison population continues to decrease, it is estimated that by 2030, there will be more than 400,000 over 55s — a staggering increase from 1981, when there were only 8,853. The numbers are rising despite recognition that continuing to lock up older prisoners not only does nothing to reduce crime, but is also expensive and inhumane. More and more aging people are becoming seriously ill and dying in prison. Prisons are not equipped to be nursing homes.
And there is mounting evidence that there is little, if any, public safety benefit to keeping people like Ms. Rubero in prison for so long. According to recent studies, a vast majority of people over 50 who are released from prison in the United States, including those with convictions for violent offenses, are much less likely to commit a crime than younger people who have never been incarcerated. Nationally, rearrests occur for only 2 percent of former prisoners over 50, and hardly at all among over-65s. Most people simply age out of crime.
If older people in prison pose so little danger, why not free them? As Ms. Rubero’s experience suggests, a major reason is a resistance to granting parole. The criteria of parole boards in states like New York include assessments of a prisoner’s possible threat to public safety and her chances of reintegrating into society. Yet boards primarily base their decisions to deny on the seriousness of the crime for which the person was convicted.
Overlooking the fact that elderly people who have served long sentences are not a public safety risk, parole boards focus instead on the past criminal behavior. In effect, they prefer to resentence the prisoner rather than make a judgment about the individual’s growth since entering prison.
What can be done to change course and stop spending billions of taxpayer dollars to keep people behind bars for excessive lengths of time ? An immediate first step would be for parole boards to give more weight to a prisoner’s transformation since entering her incarceration. Indefinitely locking up prisoners who pose no security risk once they have served their minimum term and who could contribute more outside is an inexcusable waste of money and human potential.
Feds takeover of "The Playpen" to facilitate child-porn distribution now generating court controversies
In this post from back in January, I noted early reports of a surprising government operation of a notorious "dark-web" child porn website and asked "Will FBI child porn operations generate same controversy as Fast and Furious?". This Seattle Times article highlights that the controversy is starting to find expression in motions by criminal defendants to dismiss prosecutions based on what they call outrageous government actions. Here are the basics:
For two weeks in the spring of 2015, the FBI was one of the largest purveyors of child pornography on the internet. After arresting the North Carolina administrator of The Playpen, a “dark web” child-pornography internet bulletin board, agents seized the site’s server and moved it to an FBI warehouse in Virginia.
They then initiated “Operation Pacifier,” a sting and computer-hacking operation of unparalleled scope that has thus far led to criminal charges against 186 people, including at least five in Washington state.
The investigation has sparked a growing social and legal controversy over the FBI’s tactics and the impact on internet privacy. Some critics have compared the sting to the notorious Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the illegal sales of thousands of guns to drug smugglers, who later used them in crimes.
Defense attorneys and some legal scholars suggest the FBI committed more serious crimes than those they’ve arrested — distributing pornography, compared with viewing or receiving it. Moreover, the FBI’s refusal to discuss Operation Pacifier and reveal exactly how it was conducted — even in court — has threatened some of the resulting criminal prosecutions.
Last month, a federal judge in Tacoma suppressed the evidence obtained against a Vancouver, Wash., school district employee indicted in July 2015 on a charge of receiving child pornography because the FBI refused to reveal how it was gathered. Similar motions are pending in other prosecutions in Washington and elsewhere around the country.
During the two weeks the FBI operated The Playpen, the bureau says visitors to the site accessed, posted or traded at least 48,000 images, 200 videos and 13,000 links to child pornography. At the same time, agents deployed a secret “Network Investigative Technique,” or NIT, to invade their computers, gather their personal information and send it back to the FBI.
According to court documents, between Feb. 20 and March 4, 2015, as many as 100,000 people logged onto the site, which was accessible only by using the anonymous “Tor” browser, which encrypts and routes internet traffic through thousands of other computers to hide the identity of a user. Tor, which is used for private communications by government officials, lawyers, journalists, judges and others, was thought to be virtually uncrackable until news of the FBI’s operation became public....
In [court] pleadings, the government has defended the operation as the only way to pierce the anonymity of the so-called “dark web” and get at the criminals who dwell there. Such websites cannot be found by Google or by typing in a web address and are typically operated on the Tor network. “The United States, the FBI, did not create this website,” said Assistant U.S. Attorney Keith Becker, a trial attorney with the DOJ’s Child Exploitation and Obscenity Section, at a Tacoma court hearing in January. “It was created by its users, and administrators, and existed and substantially distributed child pornography long before the government took it over in an effort to actually identity its criminal users.”
Defense attorneys, however, alleged in filings last week that FBI agents actually improved The Playpen site during the two weeks they had control, making it faster and more accessible. Visitation of The Playpen while under FBI control jumped from 11,000 to 50,000 people a week. “This is easily the largest domestic use of hacking by law enforcement in U.S. history,” said Mark Rumold, a senior staff attorney at the Electronic Frontier Foundation, a digital freedom and legal services nonprofit in San Francisco. “The problem is that there just aren’t a lot of rules on how they go about it.”
“I will not be surprised at all if we wind up before the U.S. Supreme Court,” he said. Critics also accuse the FBI of committing crimes more serious than it was investigating — distribution of pornography versus receiving it — and say the operation flies in the face of the Justice Department’s pronouncement that a child is re-victimized every time a pornographic photo is viewed or distributed.
Chris Soghoian, the principal technologist and a senior policy analyst with the American Civil Liberty Union’s Speech, Privacy, and Technology Project, said The Playpen investigation bears striking similarities to Operation Fast and Furious. “Except here, it’s child porn,” Soghoian said....
Last month, U.S. District Judge Robert Bryan in Tacoma threw out the evidence in one of the first “Operation Pacifier” prosecutions, involving a Vancouver school employee named Jay Michaud. The reason: The FBI has refused a court order to reveal to Michaud’s defense attorneys the nature of the Tor vulnerability or how the NIT works. Michaud is accused of visiting the Playpen site multiple times during the two weeks it was under FBI control and viewing explicit photos of children being sexually abused. He faced up to 20 years in prison. With the evidence tossed out, Michaud’s case likely will be dismissed. The government has appealed the judge’s decision.
A federal judge in Oklahoma reached the same conclusion in an Operation Pacifier case there, and similar motions are pending in dozens of other cases. Bryan has also allowed two other Operation Pacifier defendants in Washington state to withdraw guilty pleas so they can challenge the government over the issue.
Michaud’s attorney, Colin Fieman, a Tacoma-based federal public defender, is leading a “national defense working group” that is tracking and coordinating challenges to Operation Pacifier cases.... The case has shown that the “FBI cannot be trusted with broad hacking powers,” Fieman said. “There is no question that the internet poses serious challenges to law enforcement,” Fieman said. But he believes that in its desire to overcome those challenges — and fight the scourge of child pornography — the agency “has lost its moral compass and is willing to ignore the rules and even break the law to extend its reach.”
Michaud and other defendants have also sought to have their charges dismissed due to “outrageous government conduct” over the FBI decision to take it over and leave the site running. “It is impossible to reconcile the Playpen operation with the government’s own view of the harm caused by the distribution of child pornography,” Fieman wrote in motion to dismiss another Washington case filed last week. “The DOJ routinely emphasizes … that possessing and circulating pornographic images re-victimizes the children depicted in them.”...
Judge Bryan rejected that argument in the Michaud case, stating during a January hearing that agents were “trying to catch the bad guys, so to speak.”
“Whether they did it right is a different thing,” he said. “But they didn’t do it wrong as to be grossly shocking or outrageous to violate the universal sense of justice” and warrant dismissing the charges.
Prior related post:
Monday, August 29, 2016
Detailing efforts by Michigan prosecutors to have LWOP juveniles resentenced to LWOP
This lengthy local article, headlined "Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’," details some of the remarkable efforts of Michigan's local prosecutors in response to the Supreme Court's Miller and Montgomery rulngs requiring the resentencing of juvenile murderers preiously given mandatory LWOP sentences. Here are some extended excerpts:
Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles. Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only “rare” cases.
According to data, which Bridge obtained from a network of Michigan lawyers, at least nine county prosecutors are asking judges to uphold life sentences for every so-called “juvenile lifer” convicted in their courts. They argue that these inmates, including some who have behind bars for decades, can never be safely returned to society.
“I think what the prosecutors are doing is appalling,” said Ann Arbor lawyer Deborah LaBelle, a prisoner rights advocate who is organizing free legal representation for about 100 juvenile lifers. “The Supreme Court says the vast majority have to have the chance at being paroled,” LaBelle said. “You can’t just lock them up and throw away the key for things they did as a child.”
Among the most resistant to the Supreme Court’s ruling: Saginaw County Prosecutor John McColgan Jr., who wants to uphold 21 of 21 sentences in which life terms were given to juvenile defendants. It’s nine of nine in Kalamazoo County. And seven of seven in Muskegon County.
Meanwhile, Oakland County Prosecutor Jessica Cooper has asked judges to uphold mandatory life sentences for 44 of 49 inmates who committed crimes as juveniles. In Genesee County, Prosecutor David Leyton is asking the same in 23 of 27 cases.
More broadly, four large Michigan counties — Genesee, Oakland, Saginaw and Wayne — account for 150 of the 218 cases for which prosecutors are seeking to uphold life without parole. In Wayne County, which includes Detroit, Prosecutor Kym Worthy is seeking life without parole in 61 of 153 cases – hardly rare at 40 percent, but lower than Oakland County’s request to uphold 90 percent of juvenile life sentences.
Oakland County Sheriff Michael Bouchard put an incendiary exclamation mark on the position of prosecutors when he held a press conference in July in which he compared juvenile lifers to a famous fictional serial killer. “I looked at a sample of these individuals and they are Hannibal Lecters who committed very heinous murders — often, multiple murders — and then they’ve continued to display very assaultive behavior in prison and show no remorse,” Bouchard said.
Overall, according to the data, prosecutors are seeking to uphold life-without-parole sentences for 218 of the 363 men and women in state prisons for crimes committed as minors. Most were convicted of first-degree murder or of abetting first-degree murder. Some were as young as 14. The oldest is now 71. The effort to keep juvenile lifers permanently behind bars faces pushback from legal advocates, as well as some federal prosecutors....
Prosecutors in Michigan were given a July deadline to name juvenile lifers within their jurisdictions who they contend remain too dangerous to ever walk free. Those named will face an eventual mini-trial in which prosecutors have to prove they were among the irretrievably depraved. The facts of the original crime, statements by friends or relatives of the victim and each inmate’s background and behavior in prison are to be weighed. For those lifers not targeted by prosecutors, legislation signed by Gov. Snyder in 2014 spells out a default minimum sentence of 25 years in prison to maximum of 60 years....
In an interview with Bridge, Oakland County prosecutor Cooper called the 44 cases that she challenged for parole some of the most “heinous” crimes she has seen. She said her decision on those cases was reached only after months of exhaustive review. “We are talking about victims who were stabbed, drowned, bludgeoned and decapitated,” Cooper said. “We are not talking about people who took Dad’s car and drove over somebody’s lawn. Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.”...
Michael Dettmer, former U.S. Attorney for Michigan’s Western District, joined with another former Western District U.S. Attorney, James Brady, and Richard Rossman, former U.S. Attorney for the Eastern District, recently wrote an op-ed condemning the move by state prosecutors to challenge lesser sentences for juvenile lifers. “As former U.S. Attorneys,” they wrote, “we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.
“Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgment to recognize whether the adult before them today has rehabilitated himself.” Dettmer said he considers state prosecutors’ push to keep so many in prison for life “a slap in the face” of the court’s instruction on rehabilitation.
But county prosecutors have a powerful ally in Michigan Attorney General Bill Schuette. Schuette has vigorously fought reconsideration of juvenile life sentences, filing a friend of the court brief in 2015 in the Montgomery case on behalf of Michigan and 15 other states opposing any retroactive look at those sentences. Asked to comment on the high rate of challenges by county prosecutors, a Schuette spokesperson said, “In general, Attorney General Schuette supports local prosecutors and their decisions.”
As Donald Trump falsely claims inner-city crime "is reaching record levels," will those truly concerned about public safety address new spike in roadway deaths?
GOP Prez candidate Donald Trump took to twitter this morning to propagate false information about modern crime rates by saying in this tweet that "Inner-city crime is reaching record levels." This Wall Street Journal article, headlined "Trump Says Crime Near Records, but Data Show Murders Well Below ’90s Highs," details why this statement is patently false:
As part of Donald Trump’s declared outreach to black voters, the Republican presidential nominee has painted a dire picture of American “inner cities” rife with crime, and stated he can make them safe. While crime has indeed ticked up recently, it remains near historic lows, especially as compared to, say, the 1980s and 1990s when the streets of Mr. Trump’s hometown of New York City were far more dangerous than today.
Homicides for the first six months of the year hit 2,801 in 61 major cities surveyed by the Major Cities Chiefs Association, up 15% from the year previous. Thirty-six of the 61 departments reported increases in homicides so far this year with Chicago showing the largest jump. As of Sunday, there have been 455 murders in Chicago, up 47% from the same period last year, according to the police. There were 472 murders in all of 2015, about half the all-time high set 25 years ago....
It is hard to remember how violent the country was back then. One example is New York City. The nation’s largest city annually had 2,000 homicides during the violence-prone early 1990s. This year, the city will likely have about one-sixth of that total. The nation’s homicide record setting year was 1991, with 24,703 homicides, according to the Federal Bureau of Investigation. The nation’s larger cities had numbers considerably higher than those recorded recently.
I highlight this data not only to provide, yet again, some needed context for concerns expressed about recent the uptick in homicide in a number of notable cities, but also to highlight that even the most violent year in modern American history --- 1991, with 24,703 homicides --- still experienced 10,000+ fewer death than accidents just last year on American roads. The latest data on US traffic deaths comes from this official press release which came out just today, titled "Traffic Fatalities Up Sharply in 2015," from the National Highway Traffic Safety Administration. Here are some of these details:
The nation lost 35,092 people in traffic crashes in 2015, ending a 5-decade trend of declining fatalities with a 7.2% increase in deaths from 2014. The final data released today by the U.S. Department of Transportation’s National Highway Traffic Safety Administration showed traffic deaths rising across nearly every segment of the population. The last single-year increase of this magnitude was in 1966, when fatalities rose 8.1% from the previous year.
"Despite decades of safety improvements, far too many people are killed on our nation’s roads every year," said U.S. Transportation Secretary Anthony Foxx. "Solving this problem will take teamwork, so we're issuing a call to action and asking researchers, safety experts, data scientists, and the public to analyze the fatality data and help find ways to prevent these tragedies.”
Ten years ago, the number of traffic deaths was nearly 25% higher, with 42,708 fatalities reported nationwide in 2005. Since then, safety programs have helped lower the number of deaths by increasing seat belt use and reducing impaired driving. Vehicle improvements, including air bags and electronic stability control, have also contributed to reducing traffic fatalities. After a decade-long downward trend, traffic deaths in 2015 increased by nearly one-third compared to 2014....
Pedestrian and pedalcyclist fatalities increased to a level not seen in 20 years. Motorcyclist deaths increased over 8%. NHTSA also noted human factors continued to contribute to the majority of crashes. Almost half of passenger vehicle occupants killed were not wearing seat belts. Research shows almost one in three fatalities involved drunk drivers or speeding. One in 10 fatalities involved distraction. "The data tell us that people die when they drive drunk, distracted, or drowsy, or if they are speeding or unbuckled," said NHTSA Administrator, Dr. Mark Rosekind. "While there have been enormous improvements in many of these areas, we need to find new solutions to end traffic fatalities."
"Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System"
The title of this post is the title of this notable new paper by my OSU colleague Ric Simmons available via SSRN. Though this paper is mostly focused on the use of big data in police practices, all serious students of sentencing know that big data can and does also play a role in risk assessments and other post-conviction decision-making. Here is the abstract:
Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched.
However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause. This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations.
These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.
Fourth Circuit ruling highlights circuit split (and general insanity) regarding loss calculations and guideline sentencing in securities fraud case
The Fourth Circuit on Friday handed down a lengthy opinion in US v. Rand, No. 15-4322 (4th Cir. Aug. 26, 2016) (available here), affirming the convictions and sentence of a white-collar defendant "following his involvement in earnings mismanagement and improper accounting transactions while acting as chief accounting officer at Beazer Homes USA, Inc." The sentencing discussion in Rand occupies only six pages of a 35+ page opinion, but those pages include elements of what I see as so very insane about loss calculations and guideline sentencing in security fraud cases. These background paragraphs from the Rand opinion provide the foundation for my insanity complaint:
U.S. Sentencing Guideline § 2B1.1 sets the offense level for certain fraud offenses and requires an increase based on the loss caused by the offense conduct, in accordance with a table in § 2B1.1(b)(1). An application note instructs that “in a case involving the fraudulent inflation or deflation in the value of publicly traded security,” loss should be calculated based on how the price of a security changed, “after the fraud was disclosed to the market.” U.S.S.G. § 2B1.1 Application Note 3(F)(ix).
At sentencing, the parties debated which of Beazer’s three public disclosures qualified as the date on which the “fraud was disclosed to the market”.... The court determined that the fraud was disclosed in June and August and that the loss to investors following those dates was $135 million. Accordingly, the district court calculated an offense level of 51 for a guidelines range of life imprisonment, capped by the statutory maximum. The parties agreed that if the October date were used, the resulting loss would be $0. Had the district court used the loss amount following the October disclosure, Rand’s offense level would have been 19, with a range of 30 to 37 months. The court ultimately varied downward from the guidelines range of life imprisonment and imposed a ten-year sentence.
In other words, it seems here that the facts surrounding the defendant's criminal behavior is not in serious dispute for sentencing purposes, but there is a big legal dispute over how the federal sentencing guidelines take stock of the "loss" cause by this behavior. And, remarkably, for calculating the advisory guidelines sentencing range, one legal take on this issue calls for the defendant to get an LWOP+ sentence, but the other legal take calls for the defendant to get no more than about 3 years' imprisonment. I do not think it is insane for me to assert that it is insane for so radically different guideline prison recommendations to hinge on a technical legal dispute over loss calculations.
Adding to the insanity, at least in my view, is the Fourth Circuit panel's subsequent explanation for why it is disinclined to follow the Second and Fifth Circuits in having the US Supreme Court's "Dura [civil case] loss-causation principles apply to criminal securities fraud cases." In short form, the Fourth Circuit panel agrees with "the Third, Sixth, and Ninth Circuits [which] have declined to apply Dura in the context of criminal sentencing" largely because concerns about mis-attributing "loss" are distinct in the civil and criminal contexts. I fully agree that concerns about mis-attributing loss are distinct in the civil and criminal contexts, but it seems backward to make it much easier to attribute loss (as does the Fourth Circuit and other circuits refusing to adopt Dura loss-causation principles) in criminal cases where life and liberty (and not just property) are at stake.
In any event, and perhaps quite wisely, in the Rand case as noted in the case excerpt, the sentencing judge ultimately did not follow the guidelines range of life imprisonment when sentencing the defendant. The defendant he was sentenced "only" to 120 months' imprisonment, which obviously constitutes a huge downward variance from the guidelines' LWOP recommendation (though also, of course, constitutes a huge upward variance if the Rand’s offense level really should have been 19 with a range of 30 to 37 months' imprisonment). In this way, I suppose, the sentencing judge in Rand did what he could to stop the guidelines insanity.
Does a weekend tweet from House Speaker Paul Ryan suggest that federal statutory sentencing reform still has a chance in the months ahead?
The question in the title of this post is prompted by this weekend tweet from the account of House Speaker Paul Ryan, which includes a clip of a pro-sentencing reform speech that Speaker Ryan gave earlier this year and has this notable new sentence: "There are over 2 million people in our prisons, and a lot of them are just people who made a mistake." Ever eager to hope that federal statutory sentencing reform is not completely dead for the current year, I want to consider this tweet a positive development to that end.
That said, I learned of this tweet from this Breitbart posting, and a good bit of the posting highlights why I probably should not really get too excited or hopeful in the wake of this tweet:
In July, Ryan said he believed that Congress “overcompensated” in the 1990s by imposing tough jail sentences to combating a decades-long crime wave and a drug epidemic that destroyed communities and lives across the country. He’s now backing legislation that would slash sentences for convicted drug traffickers.
“In the 1990s, to your first point, I think government, both Republicans and Democrats, overcompensated on our criminal code. And we went too far and there are disparities — crack cocaine vs. powder cocaine — there are clear disparities and more importantly, I think that we’ve learned there are better ways of dealing with some of these problems than locking up somebody for 20 or 30 years,” Ryan told NRP host Steve Inskeep. “You end up ruining their lives, ruining their families, hurting communities, and then when they try to re-enter into society, they’re destitute.”
“So I really think there are better methods of dealing with these problems and I think that is part of criminal justice reform. I think that’s something I put out in the poverty plan that I first authored three years ago. So we intend on bringing these bills up in September,” he added.
Conservative critics have labeled the so-called reform efforts as “jailbreak” bills. For example, the Sentencing Reform and Corrections Act of 2015 (SRCA) would reduce penalties for drug traffickers profiting from poisoning communities. Neither would these drug-related penalty reduction bills significantly reduce some racial disparities, law enforcement officials say. “Blacks make up 37.5 percent of the prison population at the state and federal levels. If we released those convicted on drug charges alone the percentage of Black males in prison would drop to 37 percent — a mere half of one percent,” Milwaukee County Sheriff David Clarke testified before the House Judiciary committee.
Furthermore, the rollbacks will harm the communities they’re allegedly intended to help, say critics. “People who are convicted of a crime and imprisoned are a very small minority of the U.S. population … they comprise approximately 6.6 percent of the population,” Peter Kirsanow and a member of U.S. Commission on Civil Rights wrote in a letter to Grassley. “These people have managed to be less law-abiding than the remaining 93.4 percent of the U.S. population – quite a feat,” he wrote. “It is perhaps less of a feat when one considers that many offenders have serious additional problems that likely incline them toward criminality.”...
“This bill doesn’t touch simple possession, because there’s virtually no simple possession cases in federal court,” said prominent critic Alabama Sen. Jeff Sessions. “The Senate bill would drastically reduce mandatory minimum sentences for all drug traffickers, even those who are armed and traffic in dangerous drugs like heroin, and provide for the early release of dangerous drug felons currently incarcerated in federal prison.”
Meanwhile, drug overdoses, mostly heroin and other opioids, killed over 47,000 Americans in 2014 alone and nearly half a million in the past decade. Nearly all heroin sold in the U.S. is imported illegally from Mexico. “While Colombia has historically been the biggest source of heroin sold in the United States, Mexican output has since surpassed it, DEA officials say. Together, the two countries account for more than 90 percent of the U.S. heroin supply, and nearly all of it is smuggled into this country by Mexican traffickers,” the Washington Post reports.
Yet Ryan continues to push the bipartisan elites’ sentencing reduction agenda even as Obama continues his “stigmatize-and-federalize” campaign against local and state law enforcement — and as the Obama administration is set to free 70,000 federal prisoners. But Republicans’ efforts to partner with Democrats on leniency for criminals has stalled amid public concern. Fifty-three percent of Americans, and 68 percent of nonwhites, are “worried a great deal” about rising violent crime, according to an April Gallup poll.
The Senate sentencing-rollback bill has been stopped by opposition from multiple Senators, including Sessions and Sen. Tom Cotton. Also, President Barack Obama has rejected a proposed deal from Sen. Orrin Hatch and other Republicans leaders who have offered to back the rollback bill if Democrats support a “mens rae” rollback of white-collar business prosecutions.
Sunday, August 28, 2016
"Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine"
The title of this post is the title of this notable new paper authored by Eve Brensike Primus now available via SSRN. Here is the abstract:
Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights — like the right to effective counsel — persist without judicial correction.
But the law contains a tool which, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants’ abilities to assert violations their federal rights. And unlike the more commonly invoked cause-and-prejudice doctrine, which excuses default on the theory that a defendant’s unusual circumstances justify an exception to the rules, procedural adequacy doctrine allows courts to question the legitimacy of the state procedural regimes themselves. As a result, procedural adequacy doctrine can catalyze reform in a way that cause-and-prejudice cannot.
For procedural adequacy litigation to catalyze reform, however, it must be adapted to modern circumstances in one crucial respect. Historically, procedural adequacy doctrine focused on cases involving the deliberate manipulation of individual rules. Today, what is needed is a structural approach to adequacy, one that would consider how the interaction of multiple procedural rules unfairly burdens federal rights. Such a structural approach to adequacy is consistent with the doctrine’s original purposes and is the most sensible way to apply procedural adequacy under current conditions. Litigants should accordingly deploy a structural approach to procedural adequacy doctrine and use it to stop states from burying systemic constitutional violations in complicated procedural labyrinths.
Immediately after sentencing for attempted murder, Ohio man gives himself the death penalty by jumping off third floor
As reported in this local Ohio article, headlined "After sentencing, man jumps from courthouse third floor, dies," a sad and sudden development concluded a state sentencing proceeding on Friday. Here are the details:
A tragic turn of events occurred after a man sentenced on an attempted murder charge took his own life at the Jefferson County Courthouse.
What started as a sentencing hearing for 42-year-old Jason Binkiewiz Friday morning ended in tragedy. Jefferson County Common Pleas Judge Michelle Miller handed down a 13-year prison sentence for the charges of attempted murder and felony assault. The charge stems from a man being shot in the face outside a Dillonvale home in November 2015.
The proceedings were littered with details on a troubled past filled with a long criminal history. In some of her final remarks to the court the judge noted: "His behavior has continued over a period of 16 years, has continued to escalate and spiral out of control, resulting in somebody getting shot in the face."
But from the courtroom, things only spiraled further. As a deputy escorted Binkiewicz out of courtroom, he made his escape. "He made a run for the banister on the third floor of the courthouse and threw himself over the banister and has been pronounced dead," Jefferson County Sheriff Fred Abdalla said.
Screams filled the inside of the courthouse, and outside emergency responders rushed to the scene. Binkiewicz jumped approximately 100 feet to his death, from the third floor to the first floor.
"As soon as Binkiewicz started running, Deputy Price he was on him quick enough when he reached out, he had his shirt. It wasn't good enough, and if he held on to the shirt, most likely Deputy Price would have gone over with him," said Sheriff Abdalla. Officials are still in shock and prosecutors who have been working the case say the outcome could not have been predicted.... Because a sheriff's deputy was involved, the Steubenville police department will be handling the investigation along with the Attorney General's office.
Saturday, August 27, 2016
"Fourteen Years Later: The Capital Punishment System in California"
The title of this post is the title of this new and timely article authored by Robert Sanger and avaiable for download via Bepress. Here is the abstract:
Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed. The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if California’s system was in need of the same reforms. The study concluded that over ninety-two percent of the same reforms were needed in California. In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead to the execution of the innocent.
This article is an effort, fourteen years later, to determine what has transpired in California during the last fourteen years. It will survey of the major scholarly and judicial work that has been published in the last fourteen years on the death penalty nationally and specifically with regard to California as well as on the progress, if any, to meet the unmet recommendations of the Illinois Commission.
This article concludes that there has been much additional criticism of the failures of the criminal justice and death penalty systems in the country and specifically in California. Nevertheless, the empirical study demonstrates that no additional Recommendations of the Illinois Commission have been met in California in the last fourteen years. Illinois, itself, enacted significant reforms to meet at least some of the Illinois recommendations. Nevertheless, Illinois repealed its death penalty. California, despite no reforms, has not, as yet. The voters will have that option on November 8, 2016. By voting “Yes“ on Proposition 62, the California death penalty would be repealed.
Remarkable and disconcerning stories emerging from just a few months into Philippine Prez Duterte's aggressive new "war on drugs"
In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels. This new Washington Post article reports on recent developments on this front under the headline "Nearly 2,000 have died in Duterte’s ‘war on drugs’ in the Philippines. One is a 5-year-old girl." Here are excerpts:
Philippine President Rodrigo Duterte's "war on drugs" has left hundreds of people killed in less than two months. One of the most recent victims — and possibly the youngest — is 5-year-old Danica May Garcia, who was shot in the head on Tuesday.
According to the online news website Rappler, two motorcycle riders barged into the girl's family's home in Dagupan City, more than 130 miles northwest of Manila, while they were having lunch and opened fire. The men's main target was Danica's grandfather, 53-year-old Maximo Garcia, who had already surrendered to police a few days earlier after he was told he was on a drug watch list. Garcia ran to the back of the house toward the bathroom as the gunmen chased and shot at him. Danica, who was stepping out of the bathroom, was gunned down, Rappler reported.
"This is so painful for us," Garcia's wife, Gemma, told the Philippine Daily Inquirer. "I would miss the nights when Danica would massage us until we fell asleep. I would miss her laughter when she teased her mother." Gemma Garcia, who runs a small eatery, told the Inquirer she was surprised to find out that her husband was a drug suspect, saying he had never been involved in illegal drugs. Maximo Garcia used to earn a living by driving a tricycle, a form of auto rickshaw commonly used to carry passengers in the Philippines. But he had to stop after he suffered a stroke three years ago, according to the paper.
Superintendent Neil Miro, Dagupan's police chief, told the Inquirer that 26 suspected drug dealers have been killed in the city as of Tuesday. Nationwide, more than 1,900 killings have occurred since Duterte took office June 30, according to estimates by several media outlets. Nearly 700,000 drug users and peddlers have turned themselves in, according to Reuters.
Duterte, a tough-talking former mayor of the southern city of Davao, ran on a pledge to eradicate his country's problems with drugs. Illegal drugs, particularly methamphetamine, locally known as "shabu," have been rampant in the Philippines for decades. The 71-year-old former prosecutor has publicly advocated killing suspected criminals, even once urging citizens to take matters into their own hands.
On Monday, Philippine senators started an investigation into the rising death toll under Duterte's administration. Witnesses, with their faces covered to protect their identities, testified about how their loved ones were arrested and gunned down by police. Sen. Leila de Lima, head of the Senate justice committee leading the investigation, said in her opening remarks Monday that she's concerned about the spate of killings that appear to have been carried out by vigilantes, not by the government. "What is particularly worrisome is that the campaign against drugs seems to be an excuse for some — may I just emphasize, some — law enforcers and other vigilantes to commit murder with impunity," de Lima said.
De Lima has been accused of having an affair with her former driver and authorizing him to collect money from drug lords detained in the New Bilibid Prison in Muntinlupa City, Metro Manila when de Lima was justice secretary. De Lima has denied the allegations.
Philippine National Police Director General Ronald dela Rosa reported to the Senate committee earlier this week that of those who died, only 756 were killed during confrontations with police. Dela Rosa, nicknamed "Bato," which means rock or stone, told the Senate committee that the drug suspects were killed because they resisted arrest. "If they did not resist, they would still be alive," dela Rosa told the committee, according to the Inquirer.
The majority of the killings — 1,160 — were committed outside police operations, mostly by vigilantes, and are under investigation, dela Rosa said. He added that not all the deaths are drug-related.
International advocacy groups, meanwhile, have been vocal in opposing Duterte's policy. Phelim Kine, deputy director of the Human Rights Watch's Asia Division, wrote Thursday about Danica May's death. Kine noted that Philippine Justice Secretary Vitaliano Aguirre defended the killings linked to Duterte's war on drugs. "If you're in the Philippines, you will choose to kill these drug lords," Aguirre said. "Desperate times call for desperate measures. So this is what the president is doing, and we support it."
Amnesty International has called on Duterte to "break the cycle of human rights violations" and to curb his "inflammatory" rhetoric. "President Duterte has been elected on a mandate to uphold the rule of law. It is encouraging that he spoke of honouring the Philippines' obligations under international law in his inauguration speech," Rafendi Djamin, Amnesty International's director for Southeast Asia and the Pacific, wrote in June. "But now he is in power, he needs to lend substance to those words and break with his earlier rhetoric."...
Gemma Garcia said that her granddaughter's death has left her and her family in fear for their lives. "We are afraid to stay here. But the problem is, where will we go?" Gemma Garcia told the Inquirer. "The killers may come back for my husband."
When I discuss deterrence and related utilitarian justifications for various sentencing and punishment schemes, I often suggest that a "hard core" utilitarian with no concens about retributivist/desert-based limits on punishment might be willing to consider not just summary executions of convicted criminals, but even executions of relatives of criminals as part of an effort to dramatically deter certain types of wrong-doing. This report suggests that Philippine Prez Duterte's regime is functionally trying out what I always considered just a hypothetical thought experiement.
Prior related posts:
- President-elect in Philippines eager to bring back death penalty "especially if you use drugs"
- New Philippines Prez wasting no time executing deadly "tough on crime" plans