Sunday, October 25, 2015

Federal judge makes extended pitch for individuals to receive deferred-prosecutions agreements from DOJ

This new CNN story, headlined "Judge: Prosecutors should give drug offenders same break as companies," reports on the remarkable coda that appears at the end of a remarkable federal district court opinion handed down this past week. The start of the CNN story provides a link to the opinion and its highlights:

Some defendants charged with drug crimes should be offered a second chance the way corporations often are. U.S. District Judge Emmet G. Sullivan proposed this in an 84-page opinion in cases against two corporations this week.

Sullivan approved a settlement that will allow the companies, each facing allegations of bribery to win government contracts, to settle criminal charges. They won't have to plead guilty and won't face trial as long as they stay out of trouble in the future.

But he used the opinion to make a broader point about what he sees as a disparity in how the legal system treats corporations and nonviolent offenders.

"Drug conspiracy defendants are no less deserving of a second chance than bribery conspiracy defendants," Sullivan wrote. "And society is harmed at least as much by the devastating effect that felony convictions have on the lives of its citizens as it is by the effect of criminal convictions on corporations."

Sullivan, who is in Washington, D.C., asked why companies get a shot at "rehabilitation" when many individuals do not.

Here are just a couple of notable paragraphs from the remarkable closing sections of US v. Saena Tech Corp. penned by Judge Sullivan:

Although the Court approves the two deferred-prosecution agreements in these cases, the Court observes that the current use of deferred-prosecution agreements for corporations rather than individual defendants strays from Congress’s intent when it created an exclusion from the speedy trial calculation for the use of such agreements.  The Court is of the opinion that increasing the use of deferred-prosecution agreements and other similar tools for individuals charged with certain non-violent criminal offenses could be a viable means to achieve reforms in our criminal justice system....

The Court respectfully requests the Department of Justice to consider expanding the use of deferred-prosecution agreements and other similar tools to use in appropriate circumstances when an individual who might not be a banker or business owner nonetheless shows all of the hallmarks of significant rehabilitation potential.  The harm to society of refusing such individuals the chance to demonstrate their true character and avoid the catastrophic consequences of felony convictions is, in this Court’s view, greater than the harm the government seeks to avoid by providing corporations a path to avoid criminal convictions.  If the Department of Justice is sincere in its expressed desire to reduce over-incarceration and bolster rehabilitation, it will increase the use of deferred-prosecution agreements for individuals as well as increase the use of other available resources as discussed in this Opinion.

October 25, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Extraordinary tales of extraordinary government dsyfunctionality in execution business

In this recent post I spotlighted the remarkable reporting by BuzzFeed News about the peculiar fellow in India who  has become a central figure in some states' efforts to get their machinery of death up and running again.  Continuing their great investigavtive journalism in this space, BuzzFeed now has up two additional reports documenting how a trio of states apparently violated federal laws in order to try to import lethal injection drugs from this fellow.  Here are links to the two pieces with their extended headlines:

Here is how the second of these two articles concludes:

The FDA has consistently maintained that importing sodium thiopental would be illegal, but the states proceeded regardless. FDA records first reported on Thursday by BuzzFeed News show that two shipments of sodium thiopental made their way to the Phoenix and Houston airports in late July.

On Friday, TDCJ’s Clark told BuzzFeed News that, after obtaining an import license from the DEA prior to the shipment, TDCJ filed the required notice with the agency of the anticipated shipment.

After the shipments were held upon arrival, Arizona Department of Corrections Director Charles Ryan wrote to the FDA in August, asking them to release the drugs. “The Department will not use, or attempt to use, the cargo until it is either unconditionally released by FDA or the Department is otherwise permitted to do so by a Court Order, whichever comes first,” Ryan wrote. “I am writing to advise you that we need to take possession of the shipment.”

The FDA was not persuaded. Domenic Veneziano, who heads the FDA division that handles imports, replied, “FDA has determined that this shipment should not be allowed to move to destination at this time and thus will not be requesting that CBP lift its detention.”

For its part, Texas isn’t giving up yet, with TDCJ’s Clark telling BuzzFeed News on Friday that it “is going through internal proceedings set up for addressing the lawful status of imports with the Food and Drug Administration and is awaiting their decision.”

The FDA confirmed to BuzzFeed News on Friday that it was still holding the shipments. “Courts have concluded that sodium thiopental for the injection in humans is an unapproved drug and may not be imported into the country for this purpose. FDA has notified the state correctional facilities of the status of their respective shipments,” spokesperson Jeff Ventura wrote.

Asked whether, given the FDA’s repeated statements that such importation of sodium thiopental would not be allowed, TDCJ is challenging that position, TDCJ’s Clark responded, “We disagree with your characterization of the FDA’s statement as to the legality of importing sodium thiopental, we are appealing the detention of the drugs through the FDA’s internal proceedings.”

As if this story of government dysfunctionality was not ugly enough on its own terms, this post by Kent Scheidegger at Crime & Consequences contends that the federal government is the one really acting outside the rightful reach of the law.  His post is titled "FDA Blocks Execution Drug Importation Based on Erroneous Court of Appeals Decision," and it makes the case (as was made in a slightly different way by Ohio officials) that the FDA is off-base and over-reaching in this arena.  

In addition to wanting to note that my expertise on the death penalty comes up short when the issues is federal and state squabbles over federal drug and import laws, I am now especially eager to stress that I have been calling for Congress for nearly a decade to conduct hearings and investigate all the difficulties states have been facing with lethal injections protocols and securing executions drugs.   But, as one commentors suggested in response to my post on this topic in May 2014, perhaps the only way we woud get hearing on this topic in short order would be if there was some link to Benghazi.

Some prior related posts:

October 25, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8)

Great Hastings Law Journal coverage of federal sentencing circa 2015

Earlier this year, I had the honor of participating in a Hastings Law Journal symposium on federal sentencing reform a decade after Booker.  During the live event back in February, I thought that the written product of the symposium would be terrific if it captured even just a small piece of the many ideas developed during the live event. This current issue of Hastings Law Journal has these resulting articles, and they are all terrific:

Keynote Address: Federal Sentencing Reform Ten Years After United States v. Booker by Hon. Charles Breyer

Merit-Based Sentencing Reductions: Moving Forward on Specifics, and Some Critique of the New Model Penal Code by Rory Little

Incentivizing Excellence: A Suggestion for Merit-Based Reductions from a Twenty-Six-Year Federal Prison Insider by Michael Santos

Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment by John Pfaff

October 25, 2015 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (0)

Saturday, October 24, 2015

Justice Anthony Kennedy condemns extreme US punishments as "ongoing injustice of great proportions"

This new piece in the Harvard Gazette, headlined "Kennedy assails prison shortcomings," highlights that an especially notable Supreme Court justice is saying some especially notable things about the US criminal justice system. Here is how the piece gets started:

Without mincing words, U.S. Supreme Court Justice Anthony Kennedy disparaged the American criminal justice system on Thursday for the three prison scourges of long sentences, solitary confinement, and overcrowding.

“It’s an ongoing injustice of great proportions,” said Kennedy during a conversation with Harvard Law School (HLS) Dean Martha Minow at Wasserstein Hall, in a room packed mostly with students.

Kennedy criticized long prison sentences for the high costs associated with them. (In California, where Kennedy comes from, the cost per prisoner is $35,000 per year, he said.) He also said long sentences have appalling effects on people’s lives.

Solitary confinement, he said, “drives men mad.” He called mandatory minimum sentences “terrible” and in need of reform. Sentences in the United States, he said, are eight times longer than sentences in some European countries for equivalent crimes. With more than 1.5 million prisoners in federal, state, and local jails, the United States has the world’s largest prison population.

The worst of the matter, he said, is that nobody pays attention to this wrong, not even lawyers. “It’s everybody job to look into it,” he said.

Kennedy, LL.B. ’61, whose views on the court reflect a preoccupation with liberty and dignity, has often been described as the high court’s swing vote on major issues. But during his talk with Minow, he said he hated to be depicted that way. “Cases swing. I don’t,” he quipped, as the room erupted in laughter.

October 24, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (43)

Friday, October 23, 2015

"Marijuana Politics and Policy: As Goes Ohio, so Goes the Nation...?"

The title of this post is the title of an exciting event that I have been helping some of my students at The Ohio State University Moritz College of Law put together.  The event's timing is working out great, because the next Friday, October 30, 2015 is just few days days after the GOP candidates will be in Colorado discussing econmic issues (and marijuana reform?) and a few days before Ohio voters will go to the polls to decide on two marijuana-related ballot initiatives.  

Folks can (and should) pre-register for this (free) event at this link, which is also where you can find this summary description:

National leaders in Marijuana Politics and Policy will gather at Moritz to discuss what we have learned from reform movements in states like Colorado, Washington and others, and how these movements relate to the impending Ohio Election. In addition to discussing the impact of marijuana reform on a variety of broader criminal justice and social reform movements, the event will include a discussion of what effects reform in Ohio would have both within the state and nationally.

Participants will include Professor Douglas Berman, John Hudak from the Brookings Institute, Philip Wallach from the Brookings Institute and local researchers and advocates.

Why this event is so timely and exciting should become obvious from just a review of these recent posts from my Marijuana Law, Policy & Reform blog: 

October 23, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (3)

Would Paul Ryan as House Speaker dramatically improve prospects for federal sentencing and marijuana reform?

Great_white_hope_rectThe question in the title of this post post prompted by this news that "Rep. Paul Ryan officially declared his bid for House speaker Thursday after consolidating the support he needs to be elected by his colleagues next week," and Ryan's prior comments about sentencing reform and marijuana policy.  Specifically, as detailed in a bunch of older prior posts linked below, Ryan back in 2012 stated that he favored allowing states to set their own marijuana policies, and in 2014 Ryan expressed support for the Smarter Sentencing Act and released an anti-poverty plan that stressed the need for federal sentencing reforms in order "to tap [past offenders'] overlooked potential and ameliorate the collateral impact on children and families."

Of course, past statements and policy positions often get conveniently forgotten or can even change dramatically when a politician pursues a new leadership role at a new political time.  (For example, as stressed in this post on my marijuana reform blog Donald Trump once suggested full legalization would be the only way to "win" the drug war, but to date nobody in the MSM has asked about this position or pressed him about his views on the potential economic benefits of marijuana legalization.)   So it is possible that Ryan as House Speaker would not prioritize or even now fully support significant federal sentencing and marijuana reforms.  

But, as regular readers know well, there is a significant generational divide (especially within the GOP) concerning federal criminal justice reform issues.  Generally speaking, younger politicians like Ryan have been much more supportive of reform (and vocal about their support of reform) than older folks like out-going House Speaker John Boehner.  Consequently, even if Ryan as House Speaker might not be inclined to make criminal justice reform a top priority, I suspect the younger GOP generation with which he is linked could considerably increase the chances that the House become much more invested and aggressive in making big federal criminal justice changes in the months and years ahead.

A few prior related posts about (future long-time House Speaker?) Paul Ryan and the true conservative case for federal sentencing and marijuana reform:

October 23, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

"Utah latest red state grappling with death penalty"

The title of this post is the headline of this notable local article reporting on a notable new discussion about the death penalty in the Beehive State.  Here are the basics:

For the first time in years, Utah lawmakers are debating the merits of the death penalty, with some conservative Republican legislators questioning whether the cost and risk of executing innocent people argued for doing away with executions in the state.

"I'd pull the switch if I knew the person was guilty, and I have no problem with an eye for an eye," said Sen. Mark Madsen, R-Saratoga Springs. "But it is not a conservative value to have blind, slavish faith in government and to assume that they'll always get it right just because they have a badge or work in the prosecutor's office and we've invested them with a lot of authority."

Members of the Legislature's Judiciary Interim Committee heard from a pair of legislators in Nebraska about why that state recently abolished capital punishment, and critics of the death penalty who said the cost is exorbitant and the risk of executing innocent people is very real.

Madsen, the committee chairman, described his own evolution on the issue, to the point where he would support following the lead of legislatures in other states and do away with the death penalty. Other states are already moving in that direction.

Last week, Ohio Gov. John Kasich granted a reprieve to inmates scheduled for execution in 2016, since the state has been unable to obtain the drugs used in lethal injections. The attorney general in Oklahoma announced a one-year moratorium on executions after it was found the state used the wrong drug in its most recent case. Earlier this month, a judge in Montana blocked executions in that state for the same reason.

And the Nebraska Legislature repealed the death penalty earlier this year, but a petition drive seeking to reverse the move has blocked the repeal from taking effect until after the 2016 election.

Nebraska Republican Sen. Brett Lindstrom told the committee by phone that he supported the death penalty a year ago, but botched executions in other states and concerns about the cost and false convictions led him to a change of heart. "It just wasn't something that was working all that well in the state of Nebraska," he said....

The prospects for such a major shift among Utah's conservative Legislature are unclear, and neither Madsen nor any other Utah lawmaker is currently sponsoring a bill to end the death penalty. "I don't think Utahns think that much about the death penalty because it hardly ever happens in our state, but when it does, it's a horrific thing," said Rep. Steve Handy, R-Layton. But he acknowledged polls continue to show public support for the practice. "I don't see — and I'm going to say, unfortunately — too much of an appetite to ban the death penalty."

Handy cited figures he had prepared by legislative analysts in 2012 that showed executing a hypothetical 25-year-old convict would cost the state $1.6 million more than it would cost to incarcerate the same inmate for the rest of his or her life. And the state, at that time, spent $1.75 million a year handling death-row appeals.

More compelling to several lawmakers, was the risk of wrongly executing an inmate. Jensie Anderson from the Rocky Mountain Innocence Project said there are estimates that 4 percent of those on death row in the United States are innocent. Since 1973, there have been 156 death-row convicts who have been exonerated — one exoneration for every nine inmates put to death. "The problem is the system gets it wrong," she said....

But some, like Rep. Dixon Pitcher, R-Ogden, has no problem with continuing the current course. He and Handy knew Carol Naisbitt and her son Cortney, who were shot in the back of the head during the Ogden Hi-Fi murders in 1974. Carol was killed and Cortney lived with debilitating injuries until he died in 2002. Their killers, Pierre Dale Selby and William Andrews, were executed in 1987 and 1992, respectively.

Pitcher said he trusts the checks in place in the justice system to get it right and would be "opposed to taking [the death penalty] off the table."...

House Minority Leader Brian King, D-Salt Lake City, said the process of going through an execution itself is detrimental to society. "It's not the high road that I think we as a state and we as a country should be on, and the existence of the death penalty for me is a very coarsening thing," King said.

October 23, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Perspectives on new law enforcement sentencing reform group and Prez Obama's engagement

In addition to the Senate's work on SRCA 2015 (basics here and here), the other big sentencing reform news this week has been the emergence of the new group Law Enforcement Leaders to Reduce Crime and Incarceration (basics here), and President Obama's re-engagement with criminal justice reform matters (basics here).  These developments connected on Thursday through events at the White House involving The Marshall Project and well-reported in these pieces:

Excitingly, among the persons involved in all this important activity is FOB (Friend Of Blog) Mark Osler, and Mark late yesterday provided this exclusive insider view for reporting here:

I am one of the 130 members of a new group Doug recently wrote about, the Law Enforcement Leaders to Reduce Crime and Incarceration. That said, I suspect that I am (once again) the admission department's mistake, as nearly all of the others involved were or are now the head of some sort of law enforcement agency. The group includes the current police chiefs for New York, Los Angeles, Chicago, Houston, Washington DC, Dallas, Denver, San Francisco, Seattle, San Diego, Salt Lake City, Milwaukee, Minneapolis, Miami, Fresno, and Richmond (both Virginia and California) along with dozens of other current and former police chiefs, District and U.S. Attorneys, and sheriffs. Each has signed on to a common mission: reducing incarceration while continuing to reduce crime.

At its core, this represents a rejection of what many assume: That more incarceration necessarily and uniformly operates to keep us safe. Those on the front lines of crime-fighting in America's cities now are beginning to reject that idea and move towards more creative and effective techniques such as community policing and mental health treatment.

The public launch of the group this week included discussion sessions and a meeting with President Obama at the White House, coordinated by the Brennan Center.

Over the course of the two days, I was struck by the general unanimity of the group on the core issues of incarceration and crime control. Certainly, there is a recognition among the members that different cities present distinct challenges, and that there is no "one-size-fits-all" solution, yet there is broad agreement that this is the moment to move away from incarceration as a primary metric for success. A man in jail does not always represent a problem solved.

In his remarks, President Obama was focused and surprisingly informed on the state of criminal law at both the state and federal level. It's no secret that these issues have increasingly captured his attention, and he seemed to relish talking about it with an audience partly composed of police chiefs in uniform. Much of what he said was of specific interest to this group; for example, he noted the importance of changing the incentives for prosecutors away from simply obtaining high sentences, and (in response to a question) noted that going forward the collection and use of data is going to only become more important. He also argued that long terms of incarceration offer diminishing returns, even with violent offenders.

He challenged the audience on racial issues, too, saying that the Black Lives Matter movement raises "a legitimate issue that we have to address."

What happens next for this group will be crucial. Its very existence, though, represents a shifting of tectonic plates on the landscape of criminal justice.

October 23, 2015 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, October 22, 2015

"Heroin as an execution drug?"

The title of this post is the headline of this notable Columbus Dispatch article discussing the legislative conversation starting to emerge in the wake of the recent decision by Ohio Gov Kasich to extend the state's de facto moratorium on executions due the the continuing difficulty securing lethal injection drugs (noted here).  Here are excerpts:

As Ohio continues to struggle to find the drugs needed to carry out executions of death row inmates, the president of the Ohio Senate says it may be time to find other methods.  “If we can’t get the drugs that our protocol calls for, either we need to change our protocols, or we need to think about other solutions,” said Senate President Keith Faber, R-Celina.

“There are a lot of people out there talking about other solutions.  I’ve heard everything from using heroin, to using nitrogen, to going back to the electric chair.  That’s a debate we probably need to have.”

The state's has not executed an inmate since Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time anywhere in the U.S. The state last week canceled all executions for 2016 and there are now 24 inmates with executions scheduled into 2018.

A law that Gov. John Kasich signed in December allowing prison officials to secretly buy lethal-injection drugs from compounding pharmacies has not worked in getting Ohio the necessary drug mixture. Pharmacies have generally been unwilling to participate in a process that leads to little in sales but a potential for harsh blowback from the public if they are discovered.

The federal government has thus far blocked Ohio’s efforts to import the drugs from overseas, though the state continues to seek ways to do that.  Asked if the state would bring back the electric chair known as “Old Sparky,” Faber said, “there are options out there.”

A few prior related posts:

October 22, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

BJS releases big new statistical study on "Federal Sentencing Disparity: 2005–2012"

As detailed at this webpage, the Bureau of Justice Statistics today released a notable new study, excitingly titled " "Federal Sentencing Disparity: 2005–2012," which is described this way:  

Examines patterns of federal sentencing disparity among white and black offenders, by sentence received, and looks at judicial variation in sentencing since Booker v. United States, regardless of race. It summarizes U.S. Sentencing Guidelines, discusses how approaches of other researchers to the study of sentencing practices differ from this approach, defines disparity as used in this study, and explains the methodology.  This working paper was prepared by Abt Associates for BJS in response to a request by the Department of Justice's Racial Disparities Working Group to design a study of federal sentencing disparity.  Data are from BJS's Federal Justice Statistics Program, which annually collects federal criminal justice processing data from various federal agencies. The analysis uses data mainly from the U.S. Sentencing Commission.

The full lengthy study is available at this link, and this one-page summary highlights some of these notable substantive findings:

Racial disparity

In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case.  While there has been a trend toward more lenient sentences overall, white males have seen larger declines in average prison sentences than black males.  Black males did not benefit as much from this increased leniency, which widened the existing racial sentencing disparity between these two groups.  The disparity between black and white males narrowed as crimes became more serious.  Race probably correlated with other characteristics — such as education, income, demeanor, and location — which might have accounted partially for the differing sentences among white and black males.

Judge effect

The exercise of prosecutorial discretion did not change much during the study period, although racial disparity increased during that time.  The trend is likely attributable to individual judges’ behavior.  Evidence from the study suggests considerable differences in the sentences that judges assigned for white and black offenders.  Judges disagreed about the relative sentences for white and black males, and some judges gave black males especially longer sentences.  However, judges who imposed above-average prison terms on black offenders also tended to impose above-average prison terms on white offenders.  And judges who sentenced white offenders to below-average prison terms also commonly gave below-average prison terms to black offenders.  Sentences were disparate in that similarly situated offenders who had committed similar crimes received sentences that differed depending on the judge who imposed the sentence.

Female sentencing

Judges were found to disagree more about the sentences for females than the sentences to be imposed on males.  As a whole, females and white males received less severe sentences than black males over the 8-year study period.  Black females were found to not be disadvantaged compared to white females.

October 22, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (11)

SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5

This press release from Senate Judiciary Committee Chairman Chuck Grassley reports on the continued legislative movement of the Senate's big Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123).  Here are the basics via the press release:

The Senate Judiciary Committee today passed the Sentencing Reform and Corrections Act, which grants judges greater sentencing flexibility for certain low-level drug offenders and establishes recidivism reduction programs, while targeting violent criminals. The bill passed the committee by a vote of 15-5.  The bill passed today includes minor clarifications to the original bill text.

The bill is the product of a thoughtful bipartisan deliberation led by Senate Judiciary Committee Chairman Chuck Grassley and Assistant Democratic Leader Dick Durbin.  Original cosponsors include Senators John Cornyn (R-Texas), Sheldon Whitehouse (D-R.I.), Mike Lee (R-Utah), Charles Schumer (D-N.Y.), Lindsey Graham (R-S.C.), Patrick Leahy (D-Vt.), Cory Booker (D-N.J.) and Tim Scott (R-S.C.).  Other cosponsors include Senators Thom Tillis (R-N.C.), Chris Coons (D-Del.), Jerry Moran (R-Kan.), Dianne Feinstein (D-Cal.), Jeff Flake (R-Ariz.), Richard Blumenthal (D-Conn.), Al Franken (D-Minn.) and Amy Klobuchar (D-Minn.). 

“Today’s bipartisan Committee vote demonstrates the broad consensus that we can thoughtfully addresses the most serious and complex matters in prison sentencing. This bill preserves sentences necessary to keep violent offenders and career criminals out of our communities while addressing over-incarceration concerns and working to reduce recidivism. I’m grateful for the hard work and support of my colleagues on both sides of the aisle, and look forward to action by the full senate to move this historic reform forward,” Grassley said....

The bill narrows the scope of mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals, while broadening and establishing new outlets for individuals with minimal non-felony criminal histories that may trigger mandatory minimum sentences under current law.  The bill also reduces certain mandatory minimums, providing judges with greater discretion when determining appropriate sentences, and preserves cooperation incentives to aid law enforcement in tracking down kingpins.    

In addition to reducing prison terms for certain offenders through sentencing reform, qualifying inmates can earn reduced sentences through recidivism reduction programs outlined in the CORRECTIONS Act introduced by Cornyn and Whitehouse. The bill also makes retroactive the Fair Sentencing Act and certain statutory reforms that address inequities in drug sentences.

For more information on the Sentencing Reform and Corrections Act of 2015, see the following documents: 
•    Text of Bill Passed in Committee
•    One-page bill summary
•    Section-by-section

Recent prior related posts on SRCA 2015:

October 22, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Investigating the international drug dealer working with some death penalty states

BuzzFeed this week published this fascinating report on a curious person who has become a central figure in some states efforts to get their machinery of death up and running again.  The article's full headline highlights why the piece merits a full read: "This Is The Man In India Who Is Selling States Illegally Imported Execution Drugs:  When states ran out of execution drugs, they started paying tens of thousands of dollars to Chris Harris, a salesman in India with no pharmaceutical background."  Here is how the extended article gets started:

Eight thousand miles from the execution chamber at the Nebraska State Penitentiary is Salt Lake City — a planned satellite town in Kolkata, the capital city of India’s West Bengal state.  It’s a modern mecca of swanky office complexes, colleges, shopping malls, and restaurants.  Here, on the eighth floor of a plush glass building overlooking a lake, is an office where Nebraska’s lethal injection drug supplier says he makes his drugs.

A laminated paper sign stuck on the door of room 818 reads “Harris Pharma - manufacturer and distribution.” The office, with powder-blue walls and a frosted glass facade, is one of 61 spaces on the floor rented out to various companies.

This is the facility in India where a man named Chris Harris, a salesman without a pharmaceutical background, claims his manufacturing and distribution business is based. He has sold thousands of vials of execution drugs for corrections officials in the U.S. who are desperate to find drugs to carry out the death penalty.  An employee who works at the facility, however, said the office is not being used to make drugs.

Saurav Bose, a customer relations officer at the office rental company who has met Harris twice since he started working here a few months ago, said Harris did not manufacture drugs in this rented office.  Harris’s office, which was shut on a Tuesday morning when a reporter from BuzzFeed News visited, is much like the other ready-to-use, standardized workspaces available to rent by Regus — an international firm operating in 900 cities across the world, including the more well-known Salt Lake City in Utah.  It appeared highly unlikely that the rented office would accommodate laboratory equipment required to manufacture pharmaceutical drugs.

“He comes only two to three times in a month,” Bose said, adding that most of his communication with Harris was limited to email.  Bose, who described Harris as being “fickle” with his visits to the office, said he rarely had any clients or other people in the office.

BuzzFeed News identified several such inconsistencies after reviewing thousands of pages of court records, emails, and invoices; interviewing his past business partners; and visiting the locations in India from which Harris claims to run his business. BuzzFeed News spent more than four months trying to talk to Harris over emails, via phone calls and during a visit to his office in India.  Each time, Harris refused to talk.

“Quote me on this. I don’t speak to reporters as they always say what is not true,” Harris told BuzzFeed News when first contacted for comment in June.  After months of reporting on his sale to Nebraska, Harris again declined to talk with BuzzFeed News in September, writing, “Do and say what you want. But I will never give a reporter 2 min of my time. As all print what they want. Not the true story. They need a scandal to get sales and keep they jobs.”

BuzzFeed News has been able to confirm four times that Harris sold execution drugs illegally to four death penalty states, and documents indicate there is likely a fifth. His sales follow a typical script: The legal issues are fixed this time, don’t worry about it. Other states are buying it, too. You aren’t the only one. You just need to make it a “minimum order” to make it worth the while. Payment in advance. The documents show little effort by states to investigate Harris’s qualifications or the legalities of importing drugs.

Harris has gotten states to pay tens of thousands of dollars for his drugs, but each time, after concerns were raised over the legality of the purchase, the drugs have gone unused. Somehow, states are still falling for it.

October 22, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

Looking closer at (unexpected?) states investing more in incarceration than higher education

I often worry that some offenders when sent to prison will primarily learn about how to be a better criminal.  For that reason and others, I am troubled when government authorities invest more taxpayer resources sending young adults to correctional institutions than to educational institutions.  That concern is spotlighted by this recent Deseret News article headlined "11 states that spend more on prisons than on colleges." Among other virtues, this article highlights that the list of states investing more in incarceration than higher education is not composed of the "usual" states that get the most criticisms for criminal justice systems (although this may because a lot of those usual states seek to cut so many economic corners in the operation of their prison systems). Here is how the article gets started:

A new report by the American Academy of Arts and Sciences [available here] makes the case that state investment in higher education has fallen dramatically over the past decades.  Many states are now contributing only a small fraction of the cost of "state" colleges and universities.

One finding in particular stood out: There are now 11 states that spend more on prisons than on higher education. It's an arresting factoid, so to speak.  But it could also be deceptive.  To dig into those numbers, we looked at the 11 states on the list, plus four large states that weren't on the list — Louisiana, Texas, Florida and California — as comparisons.

In each, we compared the state to the national average on five measures: incarceration rates, per prisoner spending, higher-education spending per capita in 2013 and the change in higher-education spending per student from 2008-14.  In every case, the numbers are expressed as the percent higher or lower than the national average.

We found that beneath the headline, those 15 states actually were quite varied.  Some clearly underinvest in higher education, while others have high incarceration rates.  Some states balance high incarceration rates by spending very little per prisoner, with troubling policy implications in its own right.  Other states have low incarceration rates but still make the blacklist because they spend more per prisoner while underspending on higher ed.

Some of the states that underspend will surprise you. Reputations do not always match reality.

October 22, 2015 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Great Supreme Court Fellows opportunity for all current and future sentencing researchers/advocates

Images (3)I was pleased and honored to receive a call yesterday from Office of the Counselor to the Chief Justice of Supreme Court of the United States concerning the Supreme Court Fellows program. Though I have long been aware of this terrific program, I was not surprised to learn that the opportunity to be detailed to the US Sentencing Commission as part of the Fellows program may not be widely known.  These links and information about the program were sent my way by the Counselor's Office to make sure this opportunity gets all the attention (and applicants) that it merits:

Attached [below is ] a flyer describing the Supreme Court Fellows Program.  More information is available on the Supreme Court Fellows Program website, as is the online application.

We are very grateful for your consideration of promoting the opportunity on the Sentencing Law & Policy Blog, and in particular flagging the fellowship placement at the U.S. Sentencing Commission.  As the description of placements indicates, this fellow will participate in professional teams conducting policy, legal, and social science research on the cutting edge of criminal sentencing reform.  The breadth of the Commission’s work and its relatively small size provide the fellow with both a wide-ranging exposure to criminal law and opportunities for active participation in addressing sentencing issues.  One quarter of the fellow’s time will be set aside for research and writing of a publishable scholarly work on a topic in criminal or sentencing law.

We very much appreciate anything you can do to call the fellowship to the attention of strong candidates, as well as others who might help us identify them. Our recruiting is targeted to current or recent law clerks who are exploring careers in academia or public service. The application deadline for 2016-17 fellowships is November 6, 2015.

Download Fellows 2015_Handout

October 22, 2015 in Who Sentences? | Permalink | Comments (1)

Noting the notable decline in death sentences in Texas

A few years ago, I generally considered talk of the "death of the death penalty" to have been somewaht overstated even as a few new states abolished the death penalty and a few other states struggled with executions.  In the past I saw the talk as overstated largely because committed death penalty states like Texas and a few others were still regularly carrying out executions and because most years nationwide still more murderers were getting sentenced to death row than we getting released from death row.  

But now, circa fall 2015, with Arkansas, Ohio and Oklahoma all recently halting scheduled execution plans because of continued lethal injection problems and litigation even after the Glossip ruling, I see more to the talk of the death penalty's demise.  And this notable death penalty administration story out of the Lone Star State, headlined "Texas Poised to See New Low in Death Sentences," provides more reason for justified excitement among death penalty abolitionists. Here are the details:

Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976. In the past two weeks, two new inmates arrived on Texas’ death row — the state’s first two death sentences of 2015. A jury sentenced a man to death in a third case, but he is awaiting a competency trial, so that sentence is unofficial.

Kathryn Kase, executive director of Texas Defender Services, a nonprofit organization of death penalty attorneys, said that there is one new death penalty trial underway and another case “threatening to go” for a death penalty. “That’s a very low number [of cases] for Texas," Kase said. “We see fewer cases overall going to the death penalty across the country, and that’s no different in Texas.”

In 2011, eight people were sentenced to death in Texas, currently the lowest number for any full calendar year, according to TDCJ. Kase said that there had been three other death penalty cases this year, all ending in sentences of life without parole.

Experts often point to the 2005 introduction of a penalty of life without parole in the state as a reason for the decline in death sentences in recent years. In 2015, however, there has been a drastic drop from even last year, when there were 11 death sentences handed out.

There are many theories on the cause of this year’s drop, including new legislation from 2013 on criminal discovery reform and prosecutors pursuing the death penalty less often, Kase said. “You see prosecutors who are more concerned about innocence, more concerned about intellectual disabilities,” Kase said.

Robert Kepple, executive director of the Texas District & County Attorneys Association, points to a simpler reason for the decrease: a lower crime and murder rate. “We shouldn’t be surprised that death penalty cases are going down when there have been less murders,” Kepple said. “That’s a success story.”

The three death sentences handed down by Texas juries this year were all within the last two weeks. The sentences came 10 months after Eric Williams was sent to death row in December for the 2013 killing of the Kaufman County district attorney's wife, Cynthia McLelland. It was the state’s longest stretch between new death sentences since the death penalty was reinstated, Kase said, adding that the timing of the three cases is “purely coincidental."

October 22, 2015 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Wednesday, October 21, 2015

"Separation by Bars and Miles: Visitation in state prisons"

SeparationByBarsAndMiles_250The title of this post is the title of this notable new report from the Prison Policy Initiative. This press release about the report provides this overview:

Less than a third of people in state prison receive a visit from a loved one in a typical month [according to] a new report by the Prison Policy Initiative, Separation by Bars and Miles: Visitation in state prisons. The report finds that distance from home is a strong predictor for whether an incarcerated person receives a visit.

“For far too long, the national data on prison visits has been limited to incarcerated parents. We use extensive yet under-used Bureau of Justice Statistics data to shed light on the prison experience for all incarcerated people, finding that prisons are lonely places,” said co-author Bernadette Rabuy, who recently used the same BJS dataset for Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned.

Separation by Bars and Miles finds that most people in state prison are locked up over 100 miles from their families and that, unsurprisingly, these great distances — as well as the time and expense required to overcome them — actively discourage family visits. Given the obvious reluctance of state prison systems to move their facilities, the report offers six correctional policy recommendations that states can implement to protect and enhance family ties. Rabuy explained, “At this moment, as policymakers are starting to understand that millions of families are victims of mass incarceration, I hope this report gives policymakers more reasons to change the course of correctional history.”

October 21, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (12)

Notable new group advocating for sentencing reforms: Law Enforcement Leaders to Reduce Crime and Incarceration

I was intriguing and pleased to receive this press release this morning, titled "130 Top Police Chiefs and Prosecutors Urge End to Mass Incarceration."  The release explains the creation and commitments of a notable new public policy group.  Here are excerpts from the press release (with links and emphasis from original):

Today 130 police chiefs, sheriffs, prosecutors, and attorneys general from all 50 states join together as a surprising new voice calling for the end to unnecessary incarceration in the U.S. while maintaining public safety.

The new group, Law Enforcement Leaders to Reduce Crime and Incarceration, marks an unprecedented partnership among the nation’s top law enforcement leaders to push reforms to reduce incarceration and strengthen public safety.  At a press conference today in Washington, D.C., police chiefs from six of the largest U.S. cities, including New York, Los Angeles, Chicago, Washington, D.C., Houston, and New Orleans, will announce their policy agenda, featured in a Statement of Principles.

President Barack Obama will host members of the group at the White House tomorrow, where group leaders will speak on why they believe reducing imprisonment while protecting public safety is a vital national goal....

“As the public servants working every day to keep our citizens safe, we can say from experience that we can bring down both incarceration and crime together,” said Law Enforcement Leaders Co-Chair Garry McCarthy, Superintendent of the Chicago Police Department.  “Good crime control policy does not involve arresting and imprisoning masses of people.  It involves arresting and imprisoning the right people.  Arresting and imprisoning low-level offenders prevents us from focusing resources on violent crime. While some may find it counterintuitive, we know that we can reduce crime and reduce unnecessary arrests and incarceration at the same time.”

Members of the group will work within their departments as well as with policymakers to pursue reforms around four policy priorities:

Increasing alternatives to arrest and prosecution, especially mental health and drug treatment. Policies within police departments and prosecutor offices should divert people with mental health and drug addiction issues away from arrest, prosecution, and imprisonment and instead into proper treatment.

Reducing unnecessary severity of criminal laws by reclassifying some felonies to misdemeanors or removing criminal sanctions, where appropriate.

Reducing or eliminating mandatory minimum laws that require overly harsh, arbitrary sentences for crimes.

Strengthening ties between law enforcement and communities by promoting strategies that keep the public safe, improve community relations, and increase community engagement.

“Our decision to come together reflects the deep commitment among law enforcement’s ranks to end unnecessary, widespread incarceration,” said Law Enforcement Leaders Co-Chair Ronal Serpas, former Superintendent of the New Orleans Police Department.  “As leaders of the law enforcement community, we are committed to building a smarter, stronger, and fairer criminal justice system.  We do not want to see families and communities wrecked by our current system.  Forming this new organization will allow us to engage policymakers and support changes to federal and state laws, as well as practices, to end unnecessary incarceration.”

October 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Evangelical group adds interesting nuance to death penalty stance

As reported in this Christian Science Monitor article, a notable religious group has made a notable change in its death penalty position. The article's headline(s) provide the basics: "Why US evangelicals are changing their position on the death penalty: The National Association of Evangelicals has officially supported the death penalty for more than 40 years. They have now softened their stance." Here are the details:

As the death penalty continues to lose favor with Americans, the National Association of Evangelicals has adjusted its position on the practice.  Since the early 1970s, the NAE has supported capital punishment as a deterrent to criminals.  But on Monday, the organization  — which represents more than 45,000 churches from almost 40 different denominations, serving millions of Americans — passed a resolution that acknowledges growing opposition and differing views on death penalty.

"Evangelical Christians differ in their beliefs about capital punishment, often citing strong biblical and theological reasons either for the just character of the death penalty in extreme cases or for the sacredness of all life, including the lives of those who perpetrate serious crimes and yet have the potential for repentance and reformation," the resolution states. "We affirm the conscientious commitment of both streams of Christian ethical thought."...

White evangelical support for the death penalty has waned recent years, from 77 percent in 2011 down to 71 percent in 2014, according to a March survey from the Pew Research Center.  At the same time, 66 percent of white mainline Protestants and 63 percent of white Catholics favor the death penalty.  Overall, the survey shows American support for the death penalty has dropped from 78 percent in 1996 to 56 percent in 2014.

October 21, 2015 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (2)

Tuesday, October 20, 2015

"For Offenders Who Can’t Pay, It’s a Pint of Blood or Jail Time"

The title of this post is the headline of this New York Times story of a remarkable local sentencing story out of Alabama.  Here is how the article starts:

Judge Marvin Wiggins’s courtroom was packed on a September morning. The docket listed hundreds of offenders who owed fines or fees for a wide variety of crimes — hunting after dark, assault, drug possession and passing bad checks among them.

“Good morning, ladies and gentlemen,” began Judge Wiggins, a circuit judge here in rural Alabama since 1999. “For your consideration, there’s a blood drive outside,” he continued, according to a recording of the hearing. “If you don’t have any money, go out there and give blood and bring in a receipt indicating you gave blood.”

For those who had no money or did not want to give blood, the judge concluded: “The sheriff has enough handcuffs.”

Efforts by courts and local governments to generate revenue by imposing fines for minor offenses, particularly from poor and working­class people, have attracted widespread attention and condemnation in recent months. But legal and health experts said they could not think of another modern example of a court all but ordering offenders to give blood in lieu of payment, or face jail time. They all agreed that it was improper.

October 20, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions | Permalink | Comments (7)

Federal judge decides (finally!) that Congress has limited DOJ prosecution of state-legal marijuana businesses

As regular readers may recall, Section 538 of a spending bill passed late last year by Congress forbids the use of money by the Department of Justice to interfere with State laws implementing medical marijuana programs.  The meaning and application of this federal spending limitation on DOJ has been the subject of much dispute and some notable litigation, and yesterday brought a big ruling by US District Judge Charles Breyer.  This article from California, headlined "Major victory for marijuana dispensary in federal court," provides the details:

Lawful medical cannabis operators across America scored a major victory in federal court [after] United States District Judge Charles R. Breyer ordered the lifting of an injunction against one of California’s oldest lawful dispensaries, the Marin Alliance for Medical Marijuana.

Judge Breyer ruled that newly enacted Congressional law — the Rohrabacher-Farr Amendment — prevents the government from prosecuting the Fairfax-based Marin Alliance for Medical Marijuana, and its founder Lynette Shaw. The ruling in the United States District Court for the Northern District of California will have far-reaching legal impact, attorneys say....

In December, Congress de-funded the Justice Department’s war on medical marijuana in the states. Howver, the Justice Department has been narrowly interpreting Congressional law to continue the crackdown. The law’s authors contend Justice is breaking Congressional law by going after state-legal cannabis activity.

In June, Shaw’s attorney Greg Anton motioned for the Court to dissolve the injunction against Shaw, citing the new Rohrabacher-Farr Amendment (Section 538). Judge Breyer ruled, “the plain reading of [Congressional law] forbids the Department of Justice from enforcing this injunction against MAMM to the extent that MAMM operates in compliance with state California law.”

Judge Breyer ruled WAMM had been complying extensively with state law. “The mayor of the Town of Fairfax [stated] MAMM was operating as a model business in careful compliance with its local use permit in a ‘cooperative and collaborative relationship’ with the community,” Breyer noted in his ruling.

Judge Breyer’s ruling hands a shield to every state-legal pot shop facing federal action, lawyers state. It sets a precedent that will likely chill federal prosecutors eyeing state-legal medical cannabis enterprises, said the law office of attorney Robert Raich, through a spokesperson.

“We finally have a federal judge who is taking the authors of the spending amendment seriously when they say the intent and its wording should be interpreted so that the federal government should not be spending resources prosecuting individuals complying with state law.”

It represents a major setback for the Department of Justice, which had hoped Rohrabacher-Farr would be interpreted far more narrowly.

The full ruling by Judge Breyer is available at this link.

Some previous related posts:

October 20, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Arkansas Supreme Court stays execution to allow lethal injection litigation

As reported in this AP article, a partial ruling in favor of the state today by the top court in Arkansas was insufficient to allow the state to move forward with a number of scheduled executions. Here are the details:

The Arkansas Supreme Court ruled Tuesday that a lower-court judge overstepped his jurisdiction by halting the executions of eight death row inmates. But the high court immediately granted its own stay to give the inmates time to challenge a new state law that bars Arkansas from disclosing its execution-drug supplier.

The justices sided with the state in agreeing to toss this month's order by Pulaski County Circuit Judge Wendell Griffen. Still, Attorney General Leslie Rutledge said she was disappointed that the executions, the first of which was scheduled for this week, remained on hold. "While the Supreme Court's decision is not about the merits of the case, it is unfortunate that this further delays justice for the victims. I will continue to defend Arkansas's lethal injection statute and fight for the victims and their grieving families," Rutledge wrote in a statement Tuesday.

The high court also refused to order Griffen to schedule an earlier hearing in the case. He set the next hearing for March, just months before one of the state's execution drugs is set to expire. The attorney general's office had asked for a faster timetable, arguing that defense attorneys were trying to delay the case until the drug was no longer usable.

The prisoners are challenging the constitutionality of the state's new secrecy law, saying they need information about where and how the state's execution drugs were made to determine whether they will lead to cruel and unusual punishment. They also argue that the law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information, but the state has said the agreement was not a binding contract.

The inmates also are challenging Arkansas' three-drug execution protocol, focusing on the use of the drug midazolam. The sedative was implicated after inmates gasped and groaned during longer-than-expected executions in Oklahoma, Ohio and Arizona. "We realize there is a lot of litigation yet lying in front of us. But we feel the decision of the Supreme Court was the appropriate decision in this case," said Jeff Rosenzweig, an attorney for the inmates. "The state made a binding commitment to provide us with this information and we are entitled to this information."

October 20, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Dismantling the School-to-Prison Pipeline: Tools for Change"

The title of this post is the title of this notable new article by Jason Nance available via SSRN. Here is the abstract:

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system such as excluding them from school.

This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color.  But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement.  Further, it suggests initial strategies aimed at addressing racial implicit bias, which is a primary cause of the racial disparities relating to the school-to-prison pipeline.  The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system.

October 20, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Ohio Gov Kasich extends de facto execution moratorium into 2017

Ohio-executionEarlier this year during SCOTUS oral argument in the Glossip lethal injection case, Justice Alito complained about what he saw as a "guerrilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment." For anyone inclined to accept that characterization, today brings news that the warriors have scored another significant victory.  This new AP piece, headlined "Ohio delays executions until 2017 over lack of lethal drugs," provides the basic details:

Ohio is putting off executions until at least 2017 as the state struggles to obtain supplies of lethal injection drugs, delaying capital punishment for a full two years, the prisons department announced Monday. Execution dates for 11 inmates scheduled to die next year and one scheduled for early 2017 were all pushed into ensuing years through warrants of reprieve issued by Gov. John Kasich.

The result is 25 inmates with execution dates beginning in January 2017 that are now scheduled through August 2019. Ohio last put someone to death in January 2014.

Ohio has run out of supplies of its previous drugs and has unsuccessfully sought new amounts, including so-far failed attempts to import chemicals from overseas. The new dates are needed to give the prisons agency extra time, the Department of Rehabilitation and Correction said in a statement.

The agency “continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions, but over the past few years it has become exceedingly difficult to secure those drugs because of severe supply and distribution restrictions,” the statement said....

The next execution was scheduled for Jan. 21 when Ronald Phillips was to die for raping and killing his girlfriend’s 3-year-old daughter in Akron in 1993. Phillips’ execution was rescheduled for Jan. 12, 2017.

The handwriting has been on the wall for months that Ohio would have to make such a move, said Franklin County Prosecutor Ron O’Brien, expressing his frustration at a new set of delays. These delays come in cases where inmates have long exhausted their appeals and there’s no question of their guilt, he said. “It seems that in those states that authorize assisted suicide, there has been no impediment to securing drugs, and as time marches onward, victims wonder why they must continue to wait for justice,” O’Brien said in an email.

Ohio abandoned the two-drug method after McGuire’s execution and announced it would use either of two older drugs that it had previously obtained for capital punishment, but did not currently have supplies of. One of those drugs, sodium thiopental, is no longer manufactured by FDA-approved companies and the other, pentobarbital, has been put off limits for executions by drug makers.

Ohio obtained a federal import license to seek supplies overseas, but has been told by the FDA that such a move is illegal. Ohio raised the issue again with the FDA earlier this month, asserting the state believes it can obtain a lethal-injection drug from overseas without violating any laws. The FDA has yet to respond. 

A few prior related posts:

October 20, 2015 in Baze and Glossip lethal injection cases, Clemency and Pardons, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, October 19, 2015

"Why Arrest?"

The title of this article is the title of this interesting new article by Rachel Harmon I just noticed on SSRN. Here is the abstract:

It is no exaggeration to say that arrests are the paradigmatic police activity. While many debate the necessity of particular arrests, neither participants in the criminal justice system nor contemporary critics have seriously considered whether law enforcement – as a general matter - requires arrests.

This essay challenges the long-held assumption that, even if not every arrest is legitimate, arrests as a general matter are worthwhile because they are critical to law enforcement goals. As recent news events have suggested, arrests are more harmful than they first seem, not only to the individuals arrested but also to their families and to society as a whole.

More importantly, our traditional justifications for arrests - starting the criminal process and maintaining public order – at best support a much more limited practice of arrest than we currently permit. Overwhelmingly, arrests can be replaced with alternatives, even for serious crimes, and neither public safety nor public order will likely much suffer. As a result, whether or not arrests are fairly imposed on individuals, contemporary arrest practice is illegitimate because the coercion it involves is largely unnecessary.

October 19, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available

As I continue to enjoy watching the still on-going big Senate hearing on the remarkable Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123), I now have noticed that all the written testimony is available on-line.  Here are links to member statements all the submitted testimony, and I would be grateful to get help in figuring out if there is anything especially notable and interesting in all these materials.  My sense is that all the usual suspects are repeating their usual claims and viewpoints, but perhaps there may be some special needles in this testimonial haystack:

October 19, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Who Sentences? | Permalink | Comments (12)

New York Times editorial rightly frames debate over federal judges' expungement power

Regular readers may recall this recent post highlighting the interesting (and hip?) legal issue arising in federal court lately concerning the inherent power of federal judges to expunge a federal conviction.  This effective New York Times editorial, headlined "How to Get Around a Criminal Record," spotlights some of the unfortunate reasons this legal issue is now coming up for debate.  Here are excerpts: 

In May, a federal judge in Brooklyn took the extraordinary step of expunging the conviction of a woman he had sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme that netted her $2,500.... The move was significant because there is no federal law that allows for expungement — the permanent sealing of a criminal record to the general public....

Some 70 million to 100 million people in the United States — more than a quarter of all adults — have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges — from voting, employment and housing to business licensing and parental rights.  Some of these collateral consequences make sense — like preventing people convicted of molesting children from working in schools.  But many have no relation at all to the original offense.

The woman whose record Judge Gleeson expunged was hired repeatedly for social-work or health-care jobs, and then fired after employers ran a background check.  As the judge wrote, it is “random and senseless” that her “ancient and minor offense should disqualify her from work as a home health aide.”

The federal government lags far behind in reducing the burdens of a conviction. About half the states allow some convictions to be expunged; almost all allow expungement for arrest records and other non-conviction records.  Some expungements are automatic, while others require a petition to the court.  Of course, expungement is not a cure-all. The vast majority of employers now run background checks, many using error-strewn databases that often fail to delete sealed records.

A better, increasingly popular approach is a “certificate of rehabilitation,” which state judges issue as a way of removing certain restrictions and encouraging employers and others to take a chance on someone despite his or her record.

Another solution is the executive pardon, which restores rights lost after a conviction. Pardons were once a common method of relief from injustice, and some state governors still use it vigorously.  Gov. Jack Markell of Delaware has issued almost 1,600 pardons in six years.  But President Obama, like his recent predecessors, has almost entirely abandoned the practice.

Mr. Obama’s former attorney general, Eric Holder, understood the importance of giving people with criminal records a better chance at finding jobs and regaining their foothold in society. And yet the Justice Department is reflexively fighting Judge Gleeson’s expungement order, calling it “judicial editing of history.”

If the White House or Congress made a real effort to alleviate the crippling consequences of criminal records — by increasing pardons, or passing laws to give courts more options to lessen or remove those burdens — there would be no need for judges to play the role of editors.

Some prior related posts:

October 19, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Michigan arrest data highlight diverse impact of local decriminalization and continued impact of state-level marijuana prohibition

This new local article, headlined "Michigan pot arrests are trending up, and 8 other points about marijuana," provides data that reinforce my concern that modest marijuana reforms do not really change the basic realities of how marijuana prohibition impacts individuals in various communities.  Here are some of the notable data details:

At a time when surveys indicate a majority of Michigan residents support legalizing pot, arrests for marijuana possession or use are increasing — even as arrests for other crimes are going down, according to data collected by the Michigan State Police.  Between 2008 and 2014, arrests for marijuana possession or use went up 17 percent statewide, that data shows, while arrests for all crimes dropped by 15 percent.

One possible reason: Federal health surveys indicate marijuana is the most commonly used illicit drug, and the number of regular users has been increasing.  In 2013, about 7.5 percent of Americans age 12 or older had used marijuana in the past month, according the 2015 federal Survey on Drug Use and Health.

Below are other highlights from the Michigan arrest data, which was collected by the State Police from local and county enforcement agencies.

1. The vast majority of marijuana arrests are for possession or use.

In 2014, there were 20,483 arrests for marijuana use or possession, which was 86 percent of all marijuana arrests.  About 10 percent of the other arrests are for selling the drug, and the remainder are for "producing" the drug, smuggling or "other."  Arrests related to marijuana are about two-thirds of all drug arrests in Michigan and in 2014 were 9 percent of all criminal arrests.

2. A disproportionate number of those arrested for marijuana-related crimes are between the ages of 18 and 24.

About 43 percent of those arrested in 2014 for marijuana were age 18 to 24. The breakdown for other age groups: 26 percent were age 25 to 34; 11 percent were age 35 to 44; 9 percent were under 18; 7 percent were age 45 to 54, and 3 percent were sage 55 or older.  The federal drug survey indicates that marijuana use is highest among young adults.  In fact, 24 percent of male and 17 percent of female female full-time college students age 18 to 22 use marijuana, the survey shows.

3. The vast majority of those arrested in marijuana cases are men. 

Men comprised 83 percent of marijuana arrests in 2014, which is disproportionate compared to their rate of usage.  About 9.7 percent of American males age 12 and older are users of marijuana compared to 5.6 percent of women, according to a 2013 federal survey on drug use.  That means men are 1.7 times more likely to use marijuana, but are five times more likely to be arrested on marijuana charges.

4. African-Americans are a disproportionate number of marijuana arrests.

An African-American in Michigan was three times more likely to be arrested in 2014 for violating marijuana laws compared to a white person, although surveys and research indicate little difference between usage rates between the two groups.  In all, African-Americans comprise about 14 percent of Michigan's population, but 35 percent of marijuana arrests....

6. Since 2011, 21 Michigan cities have voted on legalizing or decriminalizing marijuana....

7. Decriminalization initiatives have had mixed impact on arrests in those communities.

Six communities — Detroit, Grant Rapids, Lansing, Kalamazoo, Flint and Ypsilanti — passed decriminalization initiatives before 2014.  Based on arrests in those cities for marijuana use or possession in 2011 compared to 2014, the initiatives had mixed impact.

The most dramatic changed occurred in Grand Rapids, where arrests for marijuana use or possession dropped from 952 in 2011 to 93 in 2014.  The numbers also dropped significantly between 2011 and 2014 in the city of Kalamazoo, from 327 to 166.  In Detroit, arrests dropped from 1,297 to 974 during the three-year period.

Arrests for marijuana use or possession actually went up in Lansing and Ypsilanti.  Lansing had 73 arrests for marijuana use or possession in 2011, compared to 79 in 2014. In Ypsilanti, arrests went from 74 to 88 during that time frame.

Cross-posted at Marijuana Law, Policy & Reform, where these additional recent posts may be of interest to sentencing fans:

October 19, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

"13 Words That Could Mean Freedom for Many: The debate over the federal ‘residual clause’"

The title of this post is the headline of this effective Marshall Project piece discussing some of the sentencing guideline fall out of the Supreme Court's Johnson ACCA vagueness ruling.  I recommend the full piece, which starts this way (links from original):

Erskine Smith was 24 when he pleaded guilty to selling cocaine in Pittsburgh. Before the plea, a letter from the government estimated his sentence at 108 months to 135 months, or about nine to 11 years.  But once he pleaded guilty, Smith received a presentence report that floored him: the report set the sentence at a mandatory 292 months to 365 months, or about 24 to 30 years.  A judge sentenced him in 1993 to 30 years in prison.

The primary reason for the extra years: Two prior “crimes of violence” that the court agreed made Smith a career offender.  Smith had punched a man at age 18 and assaulted another in his hotel room at 20.  Each conviction was for simple assault, a Pennsylvania misdemeanor, for which he served no jail time.  But the federal government classified the crimes as violent felonies, a designation that meant Smith would be sentenced under the career offender guideline of the Federal Sentencing Guidelines, which boosts sentences for people who have previously been convicted of two violent or drug felonies.

Each year, about 2,000 people are sentenced under the career offender guideline. For about three-quarters of them, the most recent crime is drug-related.  Though the sentencing guidelines have been advisory since 2005, experts say judges still tend to rely on them.  Federal non-career drug offenders get an average of nearly 69 months, while career drug offenders get an average of nearly 169 months, according to data from 2005 to 2014 analyzed by the Federal Defenders.

But a June Supreme Court ruling may get some of them, including Smith, a new sentence. In Johnson v. United States, the Court struck down the the less-than-sexily named “residual clause” of the Armed Career Criminal Act, deciding it was unconstitutionally vague.  Because of the decision, many people sentenced under the Armed Career Criminal Act will get at least five years knocked off their sentence.

The same clause appears in the career offender guideline, and defense lawyers are hoping it will meet the same fate.  They are now asking federal appellate courts to apply Johnson to the career offender guideline and resentence long-serving prisoners who have not benefited from recent, more publicized, reforms.

Some prior related posts:

October 19, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

An ever-growing list of notable witnesses for Senate hearing on Sentencing Reform and Corrections Act of 2015

As noted in this prior post, this week is a big one for consideration of the Senate's remarkable Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123).  The fun starts this this afternoon with this big hearing on the bill before the full Senate Judiciary Committee.  I am quite excited for this hearing, in part  because everytime I check the official Senate hearing page, I see another interesting witness added to the witness list.  As of Monday morning, here is the current roster of witnesses slated to testify:

I am very interested to hear what all nine of these notable witnesses have to say about SRCA 2015. Based on prior lectures and writings, I think I can safetly predict that three or four of these witnesses will be quite supportive of most or all of the bill, and that two or three of these witnesses will be quite critical of most or all of the bill. But I am unsure whether traditional supporters of federal sentencing reform will be advocating for SRCA 2015 to be even more expansive in its reforms and whether traditional critics of federal sentencing reform will assail all or only specific parts of SRCA 2015 in its current (complicated) form.

I am cautiously hopeful that there will be some submitted written testimony that I can share in a future post. Even before hearing any of the coming advocacy for and against the bill, the very fact that the witness list for this hearing is so long reinforces my sense (and fear) that passage of a big reform bill through both house of Congress remains an uphill and uncertain battle for reform advocates.

Recent prior related posts on SRCA 2015:

October 19, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Sunday, October 18, 2015

Sex offenders in San Diego sue over strict Halloween rules

As reported in this Los Angeles Times article, headlined "Halloween rules to protect children violate sex offenders' rights, lawyer says," another season of spooks and sex offender restrictions is bringing another round of suits.  Here are the basics:

As a safety precaution, state authorities have imposed Halloween restrictions on sex offender parolees, barring them from putting up decorations or passing out treats. And in San Diego County, they are required to post signs outside their homes discouraging trick-or-treaters from approaching.

A lawyer and activist from Santa Maria, Calif., wants to change that. She filed a lawsuit last week in San Diego federal court on behalf of an unidentified Chula Vista man, accusing the state of violating his rights and those of other registered sex offenders.

"For them, Halloween truly is a night of horrors," said Janice Bellucci, who also is president and founder of California Reform Sex Offender Laws. The organization is "dedicated to protecting the U.S. Constitution by restoring the civil rights of individuals required to register as sex offenders in California," according to court documents.

Bellucci said many parolees don't know how officers are going to interpret the special conditions on Halloween night. She said she's received calls from people with concerns that they might be violating parole if they turn on the porch light for a visiting relative or if they post a pumpkin drawing on the refrigerator created by one of their own children. "They don't know truly what is required of them," Bellucci said....

For more than 20 years, the department has run what it calls Operation Boo, a statewide Halloween night event in which parole officers and other law enforcement conduct compliance checks on known sex offenders. The goal is to make sure that sex offender registrants aren't attracting children to their homes....

According to the lawsuit, requiring parolees to post signs on their front doors encourages speech in violation of their 1st Amendment rights. It also invites harm to themselves, the people they live with and their property by forcing parolees to "advertise" their status as registered sex offenders.

Bellucci contends in the suit that state authorities enforce the Halloween policy in an "arbitrary and unreasonable manner," taking no account of the age of a sex offender's conviction or whether it involved a crime against a child.... Bellucci has filed similar lawsuits against the cities of Simi Valley and Orange over Halloween restrictions on registered sex offenders — "registered citizens," as she prefers to call them — including mandatory sign requirements. She said officials repealed the laws and the suits were dismissed.

Last year, parole agents arrested 62 of the 1,294 sex offender parolees who were contacted during Halloween night compliance sweeps throughout the state. The arrests were on charges of possession of child pornography, narcotics, weapons and other parole violations, state authorities said.

October 18, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6)

Referendum on legislative death penalty appeal now officially on Nebraska ballot for 2016

Images (2)As reported in this local article, headlined "Death penalty supporters put repeal on hold till 2016 vote," Nebraska is going to be the locus and focus for a lot of death penalty debate over the next year. Here is why:

A pro-death penalty group has submitted enough valid signatures to postpone the repeal of capital punishment and place a referendum on the issue on the November 2016 ballot, it was confirmed Friday.

Nebraska Secretary of State John Gale said Friday that he has sent letters certifying the success of the petition drive mounted by Nebraskans for the Death Penalty, a group backed by Gov. Pete Ricketts.

The group launched a signature drive in June shortly after the Nebraska Legislature overrode a veto by Ricketts to abolish the death penalty in the state.

Gale said the petition drive had not only submitted enough signatures to force a vote on the issue during the 2016 general election, but also to postpone the repeal until that vote is taken. “More than 143,000 signatures were verified to our office from counties where signatures were collected, which was more than enough to meet each of those thresholds,” Gale said in a press release.

Chris Peterson, a spokesman for the pro-capital-punishment group, said in a press release that the campaign to retain the death penalty has begun. “Our message is simple: the death penalty is an appropriate punishment for the most heinous of murders, it protects public safety officers from criminals who otherwise have nothing to lose by murdering a corrections officer, and is a worthwhile deterrent if it saves even a single life,” Peterson said.

Dan Parsons, a spokesman for the anti-death-penalty coalition Nebraskans for Public Safety also issued a statement. “Nebraska voters will have the same opportunity the Legislature did to have a thoughtful discussion on whether to bring back a failed system that hasn’t been used in nearly two decades, is not a deterrent, and is a waste of taxpayer dollars,” Parsons said.

As a result of Friday’s announcement, the death penalty remains on the books, according to Nebraska Attorney General Doug Peterson, who also issued a press release. But the state still lacks the necessary drugs to carry out a lethal injection execution. Even if the state could obtain the drugs, legal scholars have expressed doubt that the Nebraska Supreme Court would approve a death warrant pending the Nov. 8, 2016, vote....

Ricketts issued a statement Friday after the verification: “Nebraskans continue to tell me that the death penalty is an important public safety tool. Today’s announcement takes us one step closer to giving the voters a say in retaining the death penalty.”

One thing that could prevent a vote on the issue would be a court order, and death penalty opponents have filed two lawsuits in an attempt to do that. One of the lawsuits claims that Ricketts should have been listed as an official sponsor of the petition drive because he was a major financier of the effort, contributing $200,000.... The second lawsuit maintains that the ballot language approved by the Nebraska Attorney General’s office was misleading and slanted.

October 18, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Prez Obama talking again about talking some more about criminal justice reform

As reported in this USA Today piece, headlined "Obama launches criminal justice tour: 'Something I’ll keep fighting for'," President Obama devoted his weekly radio address Saturday morning to talking about his plans to travel the nation and talk more about criminal justice reform. Here are the basics:

President Obama said Saturday that he'll launch a nationwide criminal justice tour next week, an effort that he says will "highlight some of the Americans who are doing their part to fix our criminal justice system."

"Much of our criminal justice system remains unfair," Obama said in his weekly radio address Saturday morning. "In recent years, more of our eyes have been opened to this truth. We can’t close them anymore. And good people, of all political persuasions, are eager to do something about it."

The first stop in the tour will be in Charleston, W.Va. next Wednesday, where he'll host a town-hall-style meeting on the prescription drug abuse and heroin epidemic.The White House says Obama will talk about local, state and federal efforts as well as private sector initiatives addressing the crisis. Obama said he'll also meet in coming weeks with police chiefs and former prisoners. Details on those tour stops are expected to be released next week.

In his radio address, Obama threw his support behind bipartisan proposals in Congress to shorten mandatory minimum sentences for low-level drug offenses and reward convicts who participate in prison programs with shorter sentences.

I am always pleased when the leader of our nation brings attention to the criminal justice reform issues that are the focus of my professional work. But I remain frustrated that Prez Obama seems to continue to be content to talk about the need for more action rather than actually take more action.

In addition to lots more clemency grants (especially because he remains way behind all modern presidents on pardons), Prez Obama could create more task forces to examine existing evidence on the most successful local and state-level reforms. In particular, with all the continuing local and state-level marijuana reform activity, I think it is long overdue for Prez Obama to show some leadership in this criminal justice reform space through some significant executive action.

October 18, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (2)

Saturday, October 17, 2015

Remarkable Fusion series on "Prison Kids"

Pk_bannerThe multi-platform media company Fusion puts a number of its platforms to great use in this massive series of videos and articles under the banner "Prison Kids: A crime against America's children." Here is just a partial list (with links) of some of the pieces in the series:  

October 17, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

"The Decline of the Virginia (and American) Death Penalty"

The title of this post is the title of this notable new article by Brandon Garrett now available via SSRM. Here is the abstract:

The American death penalty is disappearing.  Death sentences and executions have reached the lowest levels seen in decades.  Public support for the death penalty has declined.  More states have abolished the death penalty or imposed de facto moratoria.  Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline.  Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s.  How times have changed.  There are now two or fewer trials a year in Virginia at which a judge or jury even considers imposing the death penalty.  Still more surprising, over one half of those trials in Virginia now result in a life sentence (11 of 21 cases from 2005 to present at which there was a capital sentencing hearing resulted in a life sentence).

Why is this happening and in Virginia of all places? In this study of the decline in the Virginia death penalty, I examine every capital trial since 2005, a group of 21 trials, and I compare those to a group of twenty capital trials from 1996 to 2004.  The law on the books has not meaningfully changed in ways that would make it harder to obtain death sentences in Virginia.  However, in 2004 regional capital defense resource centers were created to handle capital cases. From 1996 to 2004, the crucial sentencing phase at which the judge or jury decided whether to impose the death penalty was typically cursory, averaging less than two days long. In the more recent trials, the average was twice that — four days — and still more striking was the increase in numbers of defense witnesses called, greater use of expert witnesses, and the added complexity of sentencing proceedings.  Only seven counties have imposed death sentences in the past decade in Virginia. The changed understanding of effective mitigation, together with improved defense resources, may help explain the decline.

I examine additional evidence from North Carolina and Florida, situating the role of other factors such as national trends in homicide rates, and conclude by describing heightened Eighth Amendment concerns with the scattered state of the American death penalty.

October 17, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (7)

Making a case for prison abolition, not just sentencing and prison reform

This notable article in The Nation authored by Mychal Denzel Smith seeks to make the case for a prison abolition movement that would go far beyond the kinds of sentencing reform garnering bipartisan support these day.  This commentary is headlined, "The Senate’s Bipartisan Criminal Justice Reform Bill Only Tackles Half the Problem: If we don’t face the injustice of the very existence of prisons, the root causes of mass incarceration will go unaddressed."  Here are excerpts:

The Sentencing Reform and Corrections Act, as it is currently known, reduces mandatory minimum sentences for some nonviolent drug offenders, replaces life sentences for “three strikes” violations with 25 years, provides judges more discretion in sentencing low-level drug offenders, mostly ends solitary confinement for juveniles, and funds reentry programs, among other reforms.  The bill is expected to pass in the Senate, be supported in the House (which introduced its own reform bill earlier this year), and ultimately be signed into law by President Obama.

In the immediate future, it will mean shorter sentences for some nonviolent drug offenders in federal prison; when applied retroactively, it will lead to the release of others.  The prison population will shrink slightly, and the federal government will save a bit of money. But the United States will remain free to continue locking away millions of people.

Many reform advocates have praised the Senate proposal, and understandably so. Organizing around prisons and incarcerated people — those written off as the dregs of society—is tough, and any win is a welcome one, particularly one that will directly benefit people currently serving unjust sentences....  [But]changes only affect federal sentencing guidelines and don’t end mandatory minimums (in fact, the bill imposes new minimums, on certain crimes related to domestic violence and gun possession or sale linked to terrorist activity).  Despite such moderate reforms, it is being hailed as “historic,” “major,” and a “game changer.”  Why?  Because a true agenda for change has been ceded to the language of reform.  The debate started and has effectively ended without considering the injustice of the very existence of prisons.  We never considered abolition....

Abolition makes sense, though, only if we see prisons as a site of injustice in and of themselves.  And they are — not only because of the violence of rape and murder that exists within prison walls, the psychological damage, the lack of educational opportunities, and the denial of due process that locks up innocent people.  Prison is the means by which we tell ourselves we are dealing with our societal ills, but only creating more.  Prison makes us lazy thinkers, hungry for revenge instead of justice.  Prison is a violent representation of our failure to fight inequality at all levels.  In abolishing prison, we force ourselves to answer the difficult question: How do we provide safety and security for all people?

Abolition will not win right now.  But an abolitionist framework for crafting reforms would lead to more substantial changes in the US prison system.  An abolitionist framework makes us consider not only reducing mandatory minimums but eliminating them altogether.  An abolitionist framework would call for us to decriminalize possession and sale of drugs.  Abolition would end the death penalty and life sentences, and push the maximum number of years that can be served for any offense down to ten years, at most.

With these reforms in place, we as a society would have a huge incentive to rehabilitate those in prison, and we would ensure the incarcerated are capable of socialization when they are released.  And without being able to depend on prison as a site of retribution, we would have to find new ways to address things like gender-based violence, sexual assault, and domestic violence.  And we could then start making the kinds of investments in alleviating poverty that [advocates] call for.

But we can’t do that so long as prison exists as a fail-safe.  Abolition may not win today, but neither did it win when it was first introduced as solution for slavery or segregation.  So long as we allow the terms of the debate to be shaped by what is politically possible, we’ll only ever be taking tiny steps and calling them major.

October 17, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Friday, October 16, 2015

Oklahoma AG officially agrees not to seek state executions anytime soon

As reported in this new local piece, headlined "All executions may be put on hold until 2016, court documents show," a new court filing suggests Oklahoma now has another de facto temporary moratorium on executions in place. Here is why:

Attorneys for death row inmates and the Oklahoma attorney general's office jointly filed a motion in federal court early Friday morning requesting that executions and a legal challenge to the state's death penalty be put on hold. If granted, the request would mean no executions would take place in Oklahoma until 2016, at the earliest.

All of Oklahoma's scheduled executions were put on hold last month after the execution of inmate Richard Glossip was halted when corrections officials noticed they'd received the wrong drug for the procedure. Oklahoma Attorney General Scott Pruitt said the indefinite stay made it unnecessary to litigate challenges to the state's execution protocol brought by Glossip's attorneys.

“As I have previously stated, my office is conducting a full and thorough investigation into all aspects of the Department of Corrections' handling of executions," Pruitt said. "The Oklahoma Court of Criminal Appeals granted the state's request for an indefinite stay of all scheduled executions. My office does not plan to ask the court to set an execution date until the conclusion of its investigation."

In the filing, both parties agree the state should not seek any new execution dates until all on-going federal and state investigations into Oklahoma's death penalty have been completed, any investigations and changes to protocol are made available to the extent they are public, and the Oklahoma Department of Corrections is able to comply with its execution protocol.

A multicounty grand jury will hear testimony on Tuesday from Corrections Department Director Robert Patton and other officials as part of a state investigation, and the attorney general's office is conducting an internal inquiry into recent lethal drug mix-ups.

Some recent prior posts:

October 16, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2)

"Should judges who sit on the Sentencing Commission rule on the legality of sentencing guidelines?"

The question in the title of this post is the title of this great new posting authored by Andy Hessick at Notice & Comment – A Blog from the Yale Journal on Regulation.  I urge readers to check out the whole commentary, and here is a taste:

Judge Pryor is hardly the first judge to hear a case involving the Sentencing Guidelines while serving as a member of the Commission. But the practice raises some questions. Our system is suspicious of judges hearing cases in which they have an interest. As James Madison said in Federalist 44, “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Judge Pryor does not have a personal interest at stake in the case, but he does have an interest in his capacity as a member of the Commission.  Holding that the vagueness doctrine does not apply to sentencing guidelines protects his work on the Commission from future challenges of that sort.

His participation in the decision also raises separation of powers concerns.  The sentencing guidelines are legislative in nature.  A judge who both sits on the Commission and rules on the Commission’s guidelines acts as both judge and legislator.  Of course, judges sit on committees that create all sorts of rules―evidence, civil procedure, etc.  But those committees prescribe rules for the administration of the courts. Sentencing guidelines are different.  They prescribe terms of imprisonment.  Anxiety about deprivations of liberty at the hands of the government is a major reason the Constitution separates powers.

October 16, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Notable new polling on distinct sentencing/punishment issues

Via two of my favorite crime and punishment bloggers, I see that there are two new polls about public views of two different sets of sentencing and punishment issues:

For a host of reasons, I am not sure these polls are especially consequential when it comes to changing the minds or votes of established politicians.  After all, as I discussed in this recent post about medical marijuana reforms consistently polling at 90% support, we long ago would have seen an end to blanket federal marijuana prohibition if elected officials were very responsive to public polling on all these issues.  Still, these polls still provide a useful snapshot of some public perceptions of sentencing reform debates, and they also might lead even established politicians to be more (or less) confident about how aggressive they should be in their efforts in this arena.

October 16, 2015 in Death Penalty Reforms, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, October 15, 2015

New amicus brief to Eleventh Circuit seeking reconsideration of Johnson vagueness challenge to career-offender guideline

In this post just a few days 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 career offender guideline of the US Sentencing Guidelines.  Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is part of the guideline definition of a career offender.  And a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But, as noted in this post a few weeks ago, an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (11th Cir. Sept. 21, 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  I considered this ruling suspect, and thanks to Carissa Hessick and David Markus, I have now been able to play a role in explaining to the full Eleventh Circuit just why.  Specifically, Carissa primarily drafted and I primarily tweaked an amicus brief that David helped finalize and file today urging en banc review in Matchett.  The full brief can be downloaded via SSRN, and here is how it gets started:

The U.S. Sentencing Guidelines dramatically increase a defendant’s sentencing range if she has at least two prior convictions for a “crime of violence,” which U.S.S.G. § 4B1.2(a)(2) defines to include crimes that “involve[] conduct that presents a serious potential risk of physical injury to another.”  As the panel in this case acknowledged, that definition is identical to the definition in 18 U.S.C. § 924(e)(2)(B), which the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), found to be unconstitutionally vague in violation of the Due Process Clause.

Nevertheless, the panel in this case held that § 4B1.2(a)(2) is not unconstitutionally vague, reasoning that the vagueness doctrine does not apply to the now-advisory Sentencing Guidelines.  That conclusion is inconsistent with Supreme Court decisions on the vagueness doctrine and the Sentencing Guidelines.  The panel’s decision also upsets the careful balance that the Supreme Court has struck between uniformity and discretion in federal sentencing after United States v. Booker, 543 U.S. 220 (2005).  Finally, the panel decision fails to appreciate that it faced a unique situation in which a Guideline contains language identical to a federal statute declared void for vagueness by the Supreme Court.  Both the narrow basis for that decision, as well as ordinary Commission practice of reviewing and revising the Sentencing Guidelines, ensure that few Guidelines will become susceptible to serious vagueness challenges.  This Court accordingly should grant en banc review.

October 15, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

"Ending the war on drugs would not end mass incarceration" ... but it would help, perhaps a lot

NixonDrugWarBThe title of this post is the headline of this new Washington Post opinion piece authored by Charles Lane, plus a little commentary from me. The piece serves as fitting fact-check of recent sloppy statements about prison populations by Prez candidates (as do other recent similar pieces via PolitiFact and The Marshall Project).  But, like lots of commentary highlighting the statistical realities of modern prison populations, I fear Lane here underplays the potential import and impact of significant changes in state and federal drug laws. Here are excerpts, with my extended commentary at the end:

It seems that no presidential debate this year would be complete without denunciations of the drug laws, which, it is alleged, result in long prison terms for thousands of people, disproportionately African Americans, who are guilty only of low-level offenses, thus fueling “mass incarceration.”

At the last Republican debate, on Sept. 16, former Hewlett-Packard chief executive Carly Fiorina charged that “two-thirds of the people in our prisons are there for nonviolent offenses, mostly drug-related.”

Apropos of former Florida governor Jeb Bush’s admitted youthful marijuana use, Sen. Rand Paul (Ky.) observed that “there is at least one prominent example on the stage of someone who says they smoked pot in high school, and yet the people going to jail for this are poor people, often African Americans and often Hispanics, and yet the rich kids who use drugs aren’t.”

When Democrats faced off Tuesday night, Sen. Bernie Sanders (I-Vt.) said he is for marijuana legalization, “because I am seeing in this country too many lives being destroyed for nonviolent offenses. We have a criminal justice system that lets CEOs on Wall Street walk away, and yet we are imprisoning or giving jail sentences to young people who are smoking marijuana.”

“I agree completely with the idea that we have got to stop imprisoning people who use marijuana. . . . We have a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana,” the front-running former secretary of state, Hillary Clinton, chimed in.

Too bad this bipartisan agreement is contradicted by the evidence. Fiorina’s numbers, for example, are exaggerated: In 2014, 46 percent of all state and federal inmates were in for violent offenses (murder, rape, robbery and aggravated assault), according to the latest Justice Department data. And this is a conservative estimate, since the definition of violent offense excludes roughly 30,000 federal prisoners, about 16 percent of the total, who are doing time for weapons violations.

Drug offenders account for only 19.5 percent of the total state-federal prison population, most of whom, especially in the federal system, were convicted of dealing drugs such as cocaine, heroin and meth, not “smoking marijuana.”

Undeniably, the population of state prisons (which house the vast majority of offenders) grew from 294,000 in 1980 to 1,362,000 in 2009 — a stunning 363 percent increase — though it has been on a downward trajectory since the latter date. But only 21 percent of that growth was due to the imprisonment of drug offenders, most of which occurred between 1980 and 1989, not more recently, according to a review of government data reported by Fordham law professor John Pfaff in the Harvard Journal of Legislation. More than half of the overall increase was due to punishment of violent offenses, not drugs, Pfaff reports....

Given the relatively small share of drug offenders, ending the war on drugs would not significantly alter the racial disparity in incarceration rates, contrary to the conventional wisdom. Blacks make up 37.5 percent of all state prisoners, about triple their share of the population as a whole, according to the Justice Department. If we released all 208,000 people currently in state prison on a drug charge, the proportion of African Americans in state prison would still be 37 percent. In short, ending the “war on drugs” is not quite the panacea for mass incarceration that politicians imply.

Marijuana legalization could help reduce arrest rates, to be sure; and to the extent fewer people get busted for smoking pot, that would, indeed, cut down on the resulting undue negative personal and social consequences. Otherwise, the bipartisan consensus in favor of looser drug laws is just the latest political free lunch, served up by politicians who would rather discuss anything except real public policy trade-offs.

Republicans and Democrats alike are propounding the crowd-pleasing notion that we can have less incarceration — saving the country billions of dollars and international shame — without risking an increase in violent crime, or other harms. In truth, if we released all 300,000 drug offenders from state and federal prison, the U.S. incarceration rate would still be far higher than it was three decades ago, and far higher than the rates of other industrial democracies.

The only way to lower it dramatically would be to reduce the frequency and duration of imprisonment for violent crimes, while continuing to reduce violent crime itself. If any of the candidates has a plan to do that, he or she should speak up.

Images (1)Lane is quite right to highlight the statistical reality that lots more imprisoned offenders are behind bars for violent offenses than for drug crimes.  But he fails to ackowledge that a considerable amount of violent crime is related to black market turf wars and that the failure to treat effectively drug addictions and related woes often drive property crimes.  American legal and social history should provide a ready reminder of these realities: violent and property crimes (and incarceration rates) spiked considerably during alcohol Prohibition not because of greater alcohol use but due to enhanced incentives for otherwise law-abiding people to profit in the black market from others' desire for a drink.

Regular followers of this blog likely recall the case of (my former client) Weldon Angelos, which provides a clear example of a low-level marijuana dealer serving decades in federal prison based technically on "violent firearm crimes."  The modern federal drug war explained why an informant (himself fearing a long federal drug sentence) told authorities Angelos was a major drug dealer, why federal prosecutors threated Angelos with over 100 years mandatory imprisonment if he did not forgo his right to a trial after te informant arranged to buy marijuana from Angelos, and why even after his acquittal on some charges, a federal judge was bound by law to give Angelos 55 years in federal prison for having firearms nearby as he sold the informant a relatively small amount of marijuana.

I bring all this up because, again to recall American history, four score ago the ending of alcohol Prohibition indeed did itself significantly help to "reduce violent crime itself."  I am cautiously hopeful that ending marijuana prohibition will help have the same effect in the modern era.  More broadly, I sincerely believe we would further reduce violent crime by ending a drug war that relies on state violence and condemnation and investing monies saved (and taxes earned) into a significant public-health commitment to address serious drug addictions using evidence-based treatments.

October 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (12)

Texas completes its 12th execution of 2015

While many other states continue to struggle to acquire execution drugs (as highlighted here) or to properly administer the drugs they have (as highlighted here), Texas continues to have its machinery of death humming.  This AP article, headlined "Texas Executes Inmate for Killing Dallas Police Officer," reports on the state's latest execution:

A Texas man already being sought for a neighbor's slaying when he killed a Dallas police officer outside a club was executed Wednesday.  Licho Escamilla was put to death for the November 2001 death of Christopher Kevin James who was trying to break up a brawl involving Escamilla.  The 33-year-old prisoner was pronounced dead at 6:31 p.m. CDT — 18 minutes after the lethal injection began.

Escamilla became the 24th convicted killer executed this year in the United States.  Texas has accounted for 12 of the executions.  Before dying, Escamilla looked at the slain officer's daughter, who was seated a few feet away watching through a window, and told her: "God bless your heart."

He turned to his relatives watching through another window and said he loved them and everyone who supported him.  "Pope Francis, God's children has asked the state of Texas to switch my death sentence to life in prison," he said.  "But the state of Texas has refused to listen to God's children. They will have to take that up with God," he added.

He took two breaths as the sedative pentobarbital took effect, then became still.  His sister cried and screamed for God not to take him.  The rumbling of motorcycles could be heard outside the prison where bikers supporting the punishment had gathered....

James and three other uniformed officers were working off-duty when the brawl started. Escamilla pulled out a gun and opened fire on the officers as they tried to end the fight. The bullets from his 9 mm semi-automatic handgun struck James twice, knocking him to the ground.  Escamilla then calmly walked up to the officer and fired three more shots into the back of his head before running and exchanging shots with other officers, witnesses said.  A second officer wounded in the shootout survived.  A wounded Escamilla was arrested as he tried to carjack a truck.

About a half-dozen Dallas police officers stood at attention and saluted as relatives of the slain officer entered the prison in Huntsville ahead of the execution.  "It's taken longer than we would have liked," Frederick Frazier, first vice president of the Dallas Police Association, said.  He said he and others showed up to support James and make sure he's remembered for the work he did.  While officers know they're risking their lives every day, James' death has been difficult for them because of how it happened, Frazier added.

October 15, 2015 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms | Permalink | Comments (1)

Wednesday, October 14, 2015

Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015

Earlier today I received an e-mail alert from Families Against Mandatory Minimums reporting this notable federal sentencing reform news from Capitol Hill:

There will be two important events happening in Washington, DC next week -- the U.S. Senate's Sentencing Reform and Corrections Act (S. 2123) is starting to move!

The first step to turn the Senate's sentencing reform bill into a law is to have the bill reviewed and approved by the U.S. Senate Judiciary Committee, a group of 20 Senators that meets regularly.

But first, on October 19, the Senate Judiciary Committee will hold a hearing on sentencing reform. Experts will discuss the need to reform mandatory minimum sentencing laws, and Senators can ask and get answers to their questions.... Then, on October 22, the Senate Judiciary Committee will review the bill, vote on whether to make any changes to it, and vote on whether to send the final bill to the full U.S. Senate.

The full details of the events are below. If you can't come to Washington for the hearing and markup in person, you can watch them online.


When: Monday, October 19, 2015, 3:00-4:30 p.m. ET


When: Thursday, October 22, 2015, 10:00 a.m. ET

Recent prior related posts on SRCA 2015:

October 14, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Prospect of civil commitment leads UK judges to refuse to extradict child sex offender back to US

A helpful reader alerted me to this notable story about a notable legal ruling from across the pond last week.  The piece is headlined "Judges refuse to extradite 'paedophile' unless his human rights are guaranteed," and here are excerpts:

UK judges are refusing to extradite an alleged American paedophile who has been on the run from the FBI since 2007 until they have received an assurance that his human rights will not be breached.

The two judges sitting at the High Court in London made it clear that if no assurance is given they will refuse to hand over Roger Giese, 40, to stand trial in California, where is charged with sexually abusing a boy under the age of 14 from 1998 until 2002. The former choir master has been living in a village in Hampshire under a different name and working for a PR company.

An extradition request from the United States was certified by the Home Office in May 2014, and Giese was arrested on June 4 last year. But Magistrates' Court District Judge Margot Coleman refused the request last April.

She ruled there was "a real risk" that Giese would be subjected to an order for civil commitment - a form of indeterminate confinement in a secure facility - if convicted of a series of sexual offences against the boy. Judge Coleman said such an order would be a "flagrant denial" of the European Convention on Human Rights (ECHR).

The US government appealed against Judge Coleman's decision, but today it was upheld by the High Court, which gave the US authorities a deadline to assure the court that, if Giese was found guilty, "there will be no attempt to make him the subject of a civil commitment order".

Lord Justice Aikens and Mr Justice Holroyde stated in a joint written judgment that Judge Coleman was right to conclude that extradition would be "inconsistent" with Giese's ECHR rights. The judges said that if no assurance was given "in due time", the US government appeal for the right to extradite "must be dismissed".

Giese is wanted in Orange County, California, for allegedly committing "lewd acts" with a child. He is alleged to have befriended the boy in 1998, when he was working as a voice coach for the All-American Boys Chorus. He fled the US eight years ago just as he was about to stand trial.

According to a Mirror newspaper investigation, he set up home with a new partner in the Hampshire countryside. There was no suggestion she knew about his past. Together, the pair built a PR company with clients including travel giants Thomas Cook....

California is one of 20 states in the USA which have a system of civil commitment, the High Court heard. A commitment order can be imposed against "a person of unsound mind" deemed to be dangerous who has been convicted in the criminal courts and served a sentence for certain types of sexual offence.

The High Court judges said the fact that the US government was not prepared to state that no petition for civil commitment would be filed in the case of Giese did give rise to an inference that there was a real risk of that happening.... But the judges added that Giese's extradition was not being sought to make him subject of a civil commitment order but so that he could stand trial "in respect of 19 serious charges of sexual offences" against a young boy. They ruled the US government should be given a further opportunity to offer "a satisfactory assurance" that if found guilty "there will be no attempt to make him the subject of a civil commitment order".

The full 27-page ruling referenced in this article can be accessed at this link.

October 14, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Charles Koch Institute produces great set of short videos urging crimnal justice reforms

I am really intrigued, and really impressed, by this new set of one-minute videos created by the the Charles Koch Institute under the banner "Criminal Justice and Policing Reform Explainer."   Here are the topics and links to the videos, and I have embedded the one on mandatory minimums below: 

October 14, 2015 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

"The Retribution Heuristic"

The title of this post is the title of this intriguing new article available via SSRN authored by Stephen Koppel and Mark Fondacaro. Here is the abstract:

Cognitive heuristics are mental shortcuts that enable quick and efficient decision-making. Several converging lines of evidence suggest the existence of a retribution heuristic, which guides reactions to wrongdoing toward retributive punishment.  Although cognitive heuristics can generally be relied upon to produce sound decisions, they also are associated with cognitive biases and errors of judgment.  We show that the retribution heuristic produces systematic errors of judgment, and argue that the resulting “Fundamental Retribution Errors” serve to legitimize overly harsh, unjust, and ineffective criminal sanctions.

October 14, 2015 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

Tuesday, October 13, 2015

Lots of talk about all the talk about jurisdiction during SCOTUS oral argument in Montgomery

Given that the Supreme Court added on its own question about its jurisdiction to review a state habeas application of Teague when granting cert in Montgomery v. Louisiana, I was not all that surprised that a number of Justice were quite eager to debate the issue with the advocates during oral argument on Tuesday.  And, there are now helpful reviews of the Montgomery oral argument and the jurisdiction issue from Lyle Denniston here at SCOTUSblog and from Kent Scheidegger here at Crime & Consequences and from Chris Geidner here at BuzzFeed.

In addition, my terrific research assintant this afternoon sent me his summary take concerning the argument for sharing here:

In today’s oral argument for Montgomery v. Louisiana, a majority of the time was spent discussing whether or not the Court had jurisdiction to address the merits.  While the merits were discussed, neither the Justices nor the advocates addressed them at length or with much vigor.

Justices Scalia and Alito led the charge against the Court’s jurisdiction.  They were deeply concerned by the Louisiana Supreme Court’s deliberate voluntariness in adopting Teague’s retroactivity standards.  In their view, if the Court ruled that it had jurisdiction and then decided the merits in a way the Louisiana Supreme Court found unfavorable, the Louisiana Supreme Court could simply elect to abandon Teague effectively overruling the Court’s decision in this case.  I think it is safe to say, based on the oral arguments, that Justices Scalia and Alito are voting that the Court lacks jurisdiction to address the merits here. Given that, I would say Justice Thomas will also vote that the Court lacks jurisdiction.

Nonetheless, Justices Kagan, Breyer, and Sotomayor made it quite clear that they will be voting in favor of the Court’s jurisdiction.  Justices Kennedy and Ginsburg made similar manifestations.

On the merits, Justices Kagan, Breyer, and Sotomayor suggested that they would find Miller’s rule retroactive.  Justices Kennedy and Ginsburg were markedly silent on this point.  Justices Scalia and Alito were the only vocal opponents of petitioner’s arguments on the merits, but assuming both they and Justice Thomas vote against the Court’s having jurisdiction, such manifestations are moot.

The most perplexing figure in today’s arguments was the Chief Justice.  He spoke infrequently and did not tip his hand in any overt way.  However, he did make one pretty incredible point regarding the merits.  He suggested that simply “provid[ing] parole” to individuals given mandatory LWOP sentences for homicides they committed as juveniles would be a remedy to this problem.  To be fair, he made this suggestion, but did not necessarily endorse it as the right move or the proper disposition of the case.  Still, it is a bold proposition coming from the Chief Justice.

October 13, 2015 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

"Can Architecture Cure Crime?"

The question in the title of this post is the headline of this interesting Ozy article discussing a novel prison design for a women's prison in southern California.

The campus is spacious and green, with a grassy amphitheater and palm trees, volleyball nets, even a yoga studio.  Inside, the earthy tones continue: abundant natural light, murals of waves crashing into the cliffside.  From his second-floor office, Edwin Schroeder reflects on his view: “You don’t get that gut-dropping feeling anymore.”

Schroeder isn’t a professor and the vista isn’t of a liberal arts college.  He runs a women’s jail, but one that emphasizes the avant-garde over security guards.  “We’re not here to punish,” says Schroeder, which isn’t exactly a line you’d expect from a gatekeeper.  But this San Diego County jail, which houses everyone from petty criminals to accused murderers and was once known for its sickening decrepitude, is at the forefront of a new and, of course, controversial movement in prison design, one that manifests a counterintuitive idea: You could build a lockup so pleasant and thoughtfully devised that inmates would never come back....

It’s a lofty goal. And while it remains to be seen whether administrators will succeed at rebuilding lives, few would doubt that they’ve built a one-of-a-kind facility.  This will surely raise hackles among tough-on-crime folks, but this isn’t one of those pay-to-stay country club prisons for stock brokers.  It’s more of a social experiment.  In an era when more women than ever are imprisoned — the female incarcerated population in the U.S. shot up nearly tenfold between 1980 and 2010, to 205,000 — Las Colinas is testing a new theory: by treating inmates as autonomous, responsible human beings, they might actually behave like autonomous, responsible human beings.  Some would say it’s taking a woman’s touch.  There’s not a barbed wire in sight (they’re there, just not visible), and long outdoor walkways provide a feeling of freedom.  Thus, when a woman needs medical attention, she walks across that green campus to a waiting room that looks like one in any other doctor’s office.  Even booking looks less like a holding room and more like a health clinic, with separate walk-up windows for arrestees to take care of various intake procedures.

Critics will argue that comfy prisons have little deterrent effect. But the design, proponents say, is gender responsive.  For decades, conventional wisdom was that the only difference between a men’s prison and a women’s is that one has urinals.  But there are countless differences between the sexes, including, for instance, that women prefer communal spaces whereas guys value solitude.  The Bureau of Justice Statistics has found that 75 percent of women in the corrections system have suffered abuse over their lifetimes, and the dorms at Las Colinas are sensitive to that: The lowest-level offenders sleep in open-concept rooms with shoulder-height dividers, instead of individual cells. Recent research reveals that building designs, floor plans and overall ambiance affect prisoner interactions and their relationships with staff.  And as it turns out, one year in, the sheriff’s department already reports a decline in incidents of inmate-on-inmate and inmate-on-staff violence.  “Almost every sense of well-being is affected by environment,” says Barb Toews, a justice professor at the University of Washington Tacoma who studies incarcerated women....

Even if this little social experiment is successful, it will be difficult to replicate. Although there wasn’t much political bickering within San Diego over the cushy living quarters for its criminals, there likely would be elsewhere.  Las Colinas, which cost $221 million to build, is expensive, and the staffing intensive; the programmatic efforts require even more hands on deck.  And, to be clear, less than half the population gets to take advantage of the open campus; violent and other serious offenders are still housed in more traditional cell blocks — though they, too, are painted in calming colors.  Meanwhile, plenty of architects believe they shouldn’t be putting resources toward locking people away at all, on the grounds that doing so strengthens the prison-industrial complex....

Sure enough, an unholy number of variables would have to align for Las Colinas to succeed in changing its prisoners’ lives.  But officials believe failing at something different beats failing at the same thing, over and over.  “If it doesn’t work, we haven’t lost anything,” Schroeder says. “Why wouldn’t we go for it?”

October 13, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Lots of tea leaves (readings may vary) from SCOTUS arguments in Montgomery and Hurst

I have now had just enough time to skim the SCOTUS oral argument transcripts in Montgomery v. Louisiana (which is here) and in Hurst v. Florida (which is here).  Both transcripts showcase, albeit in somewhat different ways, all the complicated and intersecting jurisprudential issues in play in both cases. 

At this stage, and based perhaps more on my pre-argument beliefs than on what I surmised from my first review of the transcripts, I would predict narrow wins for the defendants in both cases.  And by narrow, I mean holdings that are fairly fact-based, case-specific and that also produce somewhat split rulings.  But maybe others read the tea leaves in these transcripts differently, and will share their insights in the comments.    

October 13, 2015 in Assessing Miller and its aftermath, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Hoping for (and even expecting) some criminal justice reform discussion during Democrats' first Prez debate

Regular readers know I am ever eager to have the national political conversation focus on criminal justice issues, and thus today I am giddy with pre-Democrat-debate anticipation.  As detailed in lots of prior posts linked below, there are plenty of criminal justice topics that would merit attention given that all the Democratic candidates have made notable criminal justice reform statements and have a diverse set of (lengthy) government service records in this arena.  Topics that are less likely to engage the GOP field but should lead to some interesting discourse among the Democratic Prez candidates include the death penalty (which candidate Michael O'Malley catgorically opposes) and private prisons (which candidate Bernie Sanders categorically opposes) and full Colorado-style marijuana legalization (which perhaps everyone opposes except the majority of voters in many key states).

Of particular note, especially with a majority of the Democratic candidates having served in the Senate, tonight's debate is the first since a bipartisan group of Senators announced the remarkable Sentencing Reform and Corrections Act of 2015 (basics of SRCA here).  It would be real interesting, though perhaps much too wonkish, to ask the candidates whether they share some liberal concerns that SRCA does not go nearly far enough to combat the problems of mandatory minimum sentencing and mass incarceration.  I would especially like to hear from former Senator Jim Webb, who was complaining about mass incarceration for years before doing so became hip, on this topic.

Because I will off-line much of the rest of today, this will be my last pre-debate post on criminal justice politics.  I will close by linking to some prior relevant Campaign 2016 posts and also by encouraging readers to fill the comments with questions they would like to see asked of the candidates.

October 13, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Could local DA elections be a critical means to fighting mass incarceration?

ImagesLots of sophisticated analyses of the roots and causes of modern mass incarceration, especially the empirical work done by John Pfaff, rightly suggest that the activities of local prosecutors are a critical part of the overall story.  Consequently, I find both notable and astute this new Economist commentary which suggests local elections for district attorneys can and should be a focal point for advocates looking to combat mass incarceration.  The piece is headlined "Two cheers: The best way to reduce the prison population," and here are excerpts:

In 2013 Charles Hynes, Brooklyn’s district attorney, was voted out of office after 24 years on the job. The ousting of an elected local prosecutor is rare in America. Incumbents who run for re-election win 95% of the time. Until Mr Hynes got the boot, no incumbent DA had lost a vote in Brooklyn since 1911. Mr Hynes’s fate needs to be more common, however, if America is to cease to be the world’s leading jailer. At present, it accounts for 5% of the world’s population and nearly 25% of its prisoners. Elected public prosecutors, such as Brooklyn’s Mr Hynes, are largely to blame.

The incarceration rate is like the water level in a bathtub. If the tap runs faster than the water drains, the level rises. The mandatory minimum sentences and truth-in-sentencing laws passed in the 1980s and 1990s blocked the outflow from America’s prison system. Proposals for sentencing reform, such as the bipartisan bill introduced by Chuck Grassley, a Republican senator from Iowa who chairs the Senate Judiciary Committee, would clear it a bit, by returning some discretion to judges and parole boards. But it would be even better to turn down the gushing tap.

Although the crime rate began to decline in the 1990s, the rate of admissions to prisons continued to climb for two decades, until it peaked in 2006. The criminal-justice system managed to put more and more people behind bars for 15 years, even though fewer and fewer people were committing crimes. The admissions rate has now reverted to the level in the late-1990s, but remains three times greater than it was 30 years ago when the crime rate was higher than it is today....

DAs can decide whether charges will be filed against arrested persons and, if so, what they will be charged with. Less than 5% of criminal cases go to trial: most end in plea bargains. And it is DAs who decide which plea deals to offer and accept, in effect determining whether offenders will be sent to prison and, if so, for how long. By and large, they are not a merciful lot.

They are also usually elected at county level, whereas prisons are run at state level. Short sentences — less than a year in most jurisdictions — are often served in county jails, putting county taxpayers on the hook. Punitive DAs can take the fiscal burden off the people who elect them by foisting the cost of imprisonment onto states.

If legislators cannot rein in DAs, that job must fall to voters. Because unseating an incumbent is so unusual, and because there are more than 3,000 county and state district attorneys, this may seem an unpromising path to a lower incarceration rate. But more than half of state prisoners, who make up the vast majority of the incarcerated, are housed in just ten states. Within those states, most prisoners come from a few large metropolitan jurisdictions. Moreover, these areas tend to contain lots of rehabilitation-minded liberals as well as minority voters, who are more likely to have family members in prison. Prosecutors in California and New York have already changed tack, and incarceration rates in those states have fallen.

Kenneth Thompson, Brooklyn’s first black DA, managed to knock Mr Hynes off his perch by highlighting a couple of dodgy murder convictions and speaking out against aggressive police tactics. And though sentencing reform is obviously needed too, the election of just a handful of “smart-on-crime” DAs in and around big cities like Houston, Chicago, Miami and Los Angeles could cut America’s incarceration rate even more dramatically.

I am not convinced that local DA elections are the "best way" to attack mass incarceration, but I do think that the work of all prosecutors (local, state and federal) should be subject to a lot more scrutiny and accountability and should be a concern for all those interested in modern criminal justice reforms.

October 13, 2015 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)