Friday, March 10, 2017
More interesting new Quick Facts on fraud sentencing from the US Sentencing Commission
I noted in this post earlier this week that the US Sentencing Commission had released the first of a new series of Quick Facts covering federal fraud sentencing with a focus on health care fraud cases. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.") I have now just noticed that the USSC released a number of other fraud-focused Quick Facts this week, and here are links to them:
Hard-core federal sentencing fans might make a parlor game of trying to guess which type of fraud has the most and which has the least sentences imposed within the calculated guideline ranges.
Collateral Consequences Resource Center provides updated 50-state accounting of judicial sealing and expungement laws
As detailed via this new post at the Collateral Consequences Resource Center, titled "Restrictions on access to criminal records: A national survey," the folks at CCRC have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement." Here is more background about this important work for the CCRC posting:
This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records. The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004. We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials....
A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life. Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse. In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety. One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.” Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.
At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.
Thursday, March 9, 2017
"Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation"
The title of this post is the title of this notable new book authored by Michael Perlin and Heather Ellis Cucolo which provides a fitting follow-up to prior posts in this space this week concerning problems with sex offender recidivism data and expanding use of crime registries. Via the publisher's website, here is a summary of the book's coverage:
Convicted sexually violent predators are more vilified, more subject to media misrepresentation, and more likely to be denied basic human rights than any other population. Shaming the Constitution authors Michael Perlin and Heather Cucolo question the intentions of sex offender laws, offering new approaches to this most complex (and controversial) area of law and social policy.
The authors assert that sex offender laws and policies are unconstitutional and counter-productive. The legislation largely fails to add to public safety-even ruining lives for what are, in some cases, trivial infractions. Shaming the Constitution draws on law, behavioral sciences, and other disciplines to show that many of the "solutions" to penalizing sexually violent predators are "wrong," as they create the most repressive and useless laws.
In addition to tracing the history of sex offender laws, the authors address the case of Jesse Timmendequas, whose crime begat "Megan's Law;" the media's role in creating a "moral panic;" recidivism statistics and treatments, as well as international human rights laws. Ultimately, they call attention to the flaws in the system so we can find solutions that contribute to public safety in ways that do not mock Constitutional principles.
US Sentencing Commission releases another big recidivism report on federal offenders
The United States Sentencing Commission is continuing to publish important new data report about the recidivism rates and patterns of federal offenders. This latest 44-page report is titled "The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders." This page on the USSC's website provides this summary and highlights:
The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders examines a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005. Information about the components of Chapter Four of the Guidelines Manual — including total criminal history score, criminal history category, and point assignments for types of past convictions — and their association with recidivism are contained in this report. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report.
Consistent with its previous work in this area, the Commission found that recidivism rates are closely correlated with total criminal history points and resulting Criminal History Category classification, as offenders with lower criminal history scores have lower recidivism rates than offenders with higher criminal history scores.
The Commission found substantial differences in recidivism rates among Criminal History Category I offenders (which includes offenders with a criminal history score of zero or one point). Less than one-third (30.2%) of Criminal History Category I offenders with zero points were rearrested while nearly half (46.9%) of offenders with one point were rearrested.
The Commission also found differences in recidivism rates among offenders with zero criminal history points. Offenders with zero points and no prior contact with the criminal justice system have a lower recidivism rate (25.7%) than offenders with zero points but some prior contact with the criminal justice system (37.4%).
Offenders who have less serious prior convictions (assigned one point) have a lower recidivism rate (53.4%) than offenders who have prior convictions assigned two or three points (71.3% for offenders with at least one two-point offense and 70.5% for offenders with at least one three-point offense).
"The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study"
The title of this post is the title of this paper recently posted to SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:
Obtaining employment is difficult for ex-offenders due to the stigma of having a criminal record. In recognition of this difficulty, some state legislatures have created certificates of relief (also known as certificates of recovery), which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure that employment decisions about certificate holders are made on a case-by-case basis.
The current study, which examines Ohio’s program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates. This test indicates that having a certificate of relief increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.
Group of Senators revive idea of a National Criminal Justice Commission
Long time readers may recall that, way back in 2009, then-Senator Jim Webb introduced legislation to create a National Criminal Justice Commission. As reported here by The Crime Report, what was old is now new again, and might this time have a chance to become a reality:
A bipartisan group of more than 20 U.S. senators is making another attempt to establish the first national commission in 50 years to study the criminal justice system and make recommendations on improving it. Smaller groups of senators have pursued the idea in recent years, but it has failed to amass enough support to pass.
One of the lead sponsors, Sen. Gary Peters (D-MI), said, “Our criminal justice system is built on the pillars of fairness and equality, but too many Americans see growing challenges in our justice system ranging from overburdened courts and unsustainable incarceration costs to strained relationships between law enforcement and the communities they serve.”
Joined by Sens. John Cornyn (R-TX) and Lindsey Graham (R-SC) as primary sponsors, the bill would establish a 14-member, bipartisan National Criminal Justice Commission that would conduct an 18-month, comprehensive review of the national criminal justice system. It would then issue recommendations for “changes in oversight, policies, practices, and laws to reduce crime, increase public safety and promote confidence in the criminal justice system.”
The panel would be composed of appointees of President Trump and congressional leaders of both parties, including experts on law enforcement, criminal justice, victims’ rights, civil liberties, and social services....
Under an order from President Trump, Attorney General Jeff Sessions recently set up a Task Force on Crime Reduction and Public Safety, but that panel is being run by heads of federal law enforcement agencies and does not include officials and advocates outside the Justice Department.
The senators’ proposal reflects a longstanding priority of the International Association of Chiefs of Police, and is also backed by the Fraternal Order of Police, which supported Trump’s election. Officials of a range of other organizations immediately backed the idea, including the Leadership Conference on Civil and Human Rights, the NAACP, the National Urban League, National Sheriffs’ Association, International CURE (Citizens United for the Rehabilitation of Errants), and the Major County Sheriffs of America.
It has already attracted support from an ideological mix of senators, ranging from Republicans Marco Rubio of Florida and Orrin Hatch of Utah on the right to Democrats Bill Nelson of Florida, Kirsten Gillibrand of New York, and Kamala Harris of California on the left.
Wednesday, March 8, 2017
AG Sesssions issue memo directing US Attorneys focus on "drivers of violent crime" ... and indicating change to Holder's charging memos forthcoming
As reported via this official DOJ Press release, "Attorney General Jeff Sessions today directed federal prosecutors nationwide to engage in a focused effort to investigate, prosecute and deter the most violent offenders." Here is more from the release:
This builds on the announcement last week of the creation of the U.S. Department of Justice Task Force on Crime Reduction and Public Safety, which is central to the Attorney General’s commitment to combatting illegal immigration and violent crime, such as drug trafficking, gang violence and gun crimes, and to restoring public safety to all of the nation’s communities.
“Turning back our nation’s recent rise in violent crime is a top priority for the Department of Justice, and it requires decisive action from our federal prosecutors,” said Attorney General Sessions. “I’m urging each of them to continue working closely with their counterparts at all levels, and to use every tool we have to put violent offenders behind bars and keep our citizens safe.”
In a memo to federal prosecutors in the department’s 94 United States Attorney’s Offices, the Attorney General made clear that prosecuting violent criminals is a high priority and prosecutors should work closely with their federal, state, local and tribal law enforcement partners to target the most violent offenders in each district. Working together, law enforcement at every level should determine which venue – federal or state – would best get those identified immediately off our streets and punished appropriately for their crimes.
The memo states when federal prosecution is determined appropriate, federal prosecutors should ensure the individuals driving violent crime in their district are prosecuted using the tools at their disposal, which may include firearms offenses, including possession and straw purchasing offenses; possession of a firearm during and in relation to a violent crime or drug trafficking offense; Hobbs Act robbery; carjacking; violent crime in aid of racketeering; Racketeering Influenced and Corrupt Organizations Act; and drug offenses under the Controlled Substances Act, among others.
The memo is available at this link, and hard-core federal sentencing fans might be most intrigued by a line that appears at the end of the memo which states that "an updated memorandum for charging in all criminal cases will be forthcoming." That line suggests to me that pretty soon we will be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013.
Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay
As this AP article reports, a "paid hit man was executed Tuesday night in Texas for gunning down a San Antonio woman in a life insurance scheme nearly a quarter-century ago." Here are a few more details about this latest execution:
Rolando Ruiz was given a lethal injection for fatally shooting Theresa Rodriguez, 29, outside her home in 1992 as she was getting out of a car with her husband and brother-in-law, who both orchestrated her murder. Ruiz was paid $2,000 to carry out the killing. Ruiz, strapped to the Texas death chamber gurney, looked directly at two sisters of his victim and their husbands and apologized profusely....
As the lethal dose of pentobarbital was administered, he took several deep breaths, then began snoring quietly. All movement stopped within about 30 seconds. Ruiz, 44, was pronounced dead 29 minutes later at 11:06 p.m. His execution was the third this year in Texas and the fifth nationally.
“It’s not going to bring her back, so it really doesn’t mean very much,” Susie Sanchez, whose daughter was killed in the contract murder, said Monday. Her daughters, who were among the witnesses Tuesday night, declined to comment afterward.
The execution was delayed for nearly five hours until the U.S. Supreme Court rejected three appeals attorneys had filed for Ruiz to try to stop the punishment. His lawyers argued to the high court that lower courts improperly rejected an earlier appeal that focused on whether Ruiz earlier had deficient legal help. They also contended Ruiz’s execution would be unconstitutionally cruel because he’s been on death row since 1995, had multiple execution dates and two reprieves. Attorney Lee Kovarsky blamed the long time between a San Antonio jury’s verdict and the punishment on the state’s failure to provide Ruiz with competent lawyers earlier in his appeals.
Justice Stephen Breyer said he would have stopped the execution to further examine the question of prolonged death row confinement.
Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:
Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....
Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing. Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty. Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts. Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.
If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity. That is why I would grant a stay of execution, allowing the Court to examine the record more fully.
"Public Crime Registries Rarely Work, So Why Do They Continue to Grow?"
The question in the title of this post is the headline of this new Pacific Standard commentary authored by Emmanuel Felton. Here are excerpts:
[T]he idea of making information about offenders public has proven immensely popular. A 2005 Gallup poll showed that virtually all Americans — 94 percent — supported public sex offender registries and about two-thirds of those surveyed said they weren’t even somewhat concerned about how the public nature of registries affected those forced to sign up. With the Internet providing states with a cheap and easy way to get information into the hands of citizens, lawmakers soon found registries to be a relatively inexpensive solution to complex problems, says Amanda Agan, a Rutgers University professor who studies the economics of crime.
“These policies were well intentioned and they sounded like they might work. And on top of that they are relatively low cost,” Agan says. “But now we have all of this evidence that they just don’t work, but the problem is it’s very difficult to start pulling back. There would be a public outcry.”
The Murderer and Violent Offender Against Youth Registry started off as a fix for a legislature-made problem. In the mid-1990s, at the height of the tough-on-crime movement, Illinois added a host of offenses against children to their sex offender rolls, including first-degree murder, kidnapping, and child abduction, regardless of whether the crime involved a sex offense. Responding to concerns that it was unfair to include those offenders — take, for example, the case of a 13-year-old girl who stabbed her older brother with a kitchen knife after a fight over a shower cap — on the sex crime list, the state created this new violent offender registry. That created a registry for people convicted of a set of violent crimes against children. That list was later expanded to include murderers like Armstrong, whose crimes didn’t involve children, when, in 2011, state lawmakers passed Andrea’s Law, named for a college student strangled to death by her ex-boyfriend.
While Illinois lawmakers may be the most zealous employers of public registries — the state also maintains an online list of those convicted of making methamphetamine — the state is far from alone. Oklahoma also has a violent crime registry similar to Illinois’ and Kansas has a meth registry like Illinois’. Indiana, Kansas, and Montana still have combined sex and violent offender registries. Florida, on the other hand, makes folks convicted of three violent felonies sign up for a public registry. Tennessee also had a meth registry, before expanding it into a much more encompassing drug offender registry. And among the more original uses, Tennessee also has an animal abuser registry and Utah recently launched a registry for people convicted of certain white-collar crimes.
While there isn’t much research about the effectiveness of newer crime registries like those for murderers, there has been a lot of research into sex offender registries. Jill Levenson, a professor of social work at Barry University, says that research has been conclusive: those registries simply haven’t reduced sex crimes. She says that’s because they obscure the real threat to children, being abused by someone close to them, and greatly overemphasize the incredibly rare occurrences of children being abducted by people they don’t know.
“Stranger abductions of children happen just 115 times a year in this country,” says Levenson, who studies the effectiveness of policies that aim to reduce sexual violence. “While there’s no question that that’s 115 too many, there are 80 million children in this country. The problem with sex offender registries is they obscure the real threat — over 90 percent of children who are sexually abused are abused by people they know.”
St. Louis University Law School professor Molly Wilson says the concept of cognitive availability helps explain why threats like stranger danger remain so prominent in the making of our criminal codes. Cognitive availability describes a logical fallacy where decision-makers tend to overemphasize the importance of examples that quickly come to mind. That leads people to overestimate threats with really salacious details, Wilson says. “When you ask someone to estimate how serious a threat is, they search their minds,” says Wilson, who also holds a doctorate degree in psychology. “What they come to first is what is cognitively available, and that’s these really vivid examples that from an empirical standpoint are pretty rare. The human mind is designed to think of the sensory cases that imprint details — an image of the bicycle that a girl was riding sticking out of the bushes.”
Cognitive availability is a particularly compelling explanation for why many registries quickly expanded to murderers despite the fact that just 1 percent of murderers kill again. Similarly, just 6 percent of people convicted of rape or sexual assault repeated in the five-year follow-up period covered by a recent Bureau of Justice Statistics report. That’s compared to a 13 percent same-crime recidivism rate for robbers and a 34 percent rate for those convicted of assault. Despite repeated attempts by researchers to link lower sex offender recidivism rates with the passage of registration laws, there’s been no conclusive evidence supporting that hypothesis. In fact, there is some evidence that these laws actually increase recidivism as they effectively act as anti-re-entry programs.
Arthur Lurigio, a clinical psychologist and a professor of criminal justice and psychology at Loyola University Chicago, says the rise of registries underscores a central failure of America’s criminal justice system: “ We are failing to recognize the possibility of human change.”...
Wayne Logan — whose 2009 book, Knowledge as Power: Criminal Registration and Community Notification Laws in America, charts the rise of crime registries over 75 years — says there has been some relaxing of registration rules for sex offenders in recent years. He points to California’s public registry, which no longer includes those caught soliciting prostitutes and so-called Romeo and Juliet offenses—those are the cases where there’s consensual sex between teenagers, one of whom is a minor. “You see some unwinding,” says Logan, a professor of law at Florida State University. “But the overall trend is expansion. It’s a very flexible technology, it can work for arsonists or meth makers or white-collar criminals. It’s social control on the cheap.”
March 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)
Tuesday, March 7, 2017
Detailing how common a very long wait on death row has become
Slate has this notable short piece on the long wait many condemned have before execution. The piece is headlined "40 Years Awaiting Execution: For many death row inmates, the long process leading to capital punishment is itself cruel — but not unusual." Here are excerpts:
In 1979, Arthur Lee Giles, then 19 years old, was sentenced to death in Blount County, Alabama. Nearly 40 years later, he is still waiting to be executed. His glacial march to execution exposes a conundrum at the heart of America’s death penalty. Condemned prisoners often spend decades on death row before being executed — if the execution ever happens at all — a fact that undermines any retributive value capital punishment might provide.
Approximately 40 percent of the 2,739 people currently on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50. (This is according to data collected by the Fair Punishment Project and sourced from the NAACP’s Legal Defense Fund, the Federal Bureau of Prisons, and state corrections departments.)
According to a Los Angeles Times investigation, roughly two dozen men on California’s death row require walkers and wheelchairs, and one is living out his days in bed wearing diapers. In North Carolina, nine death row prisoners have died of natural causes since 2006 — the same year the state last executed someone. These delays suggest that executions must be sped up significantly....
With public support for executions at historic lows, death row delays seem likely to increase. Just 20 of the nearly 3,000 prisoners on death row nationwide were executed last year.
California is a prime example. In 2014, a federal judge wrote that the state’s capital punishment system is actually a sentence of “life without parole with the remote possibility of death.” The judge calculated that “just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years.” That’s an unfathomable outcome in any state, much less in one that has not performed a single execution in more than a decade....
In an effort to combat these delays, California voters narrowly passed Proposition 66 in 2016, which promised to speed up executions by imposing more severe limitations on the death penalty appeals process. Yet Prop 66 has already faced significant constitutional challenges, and the California Supreme Court has stayed the initiative pending the outcome of a case filed by former state Attorney General John Van de Kamp and Ron Briggs, the two men who wrote the successful statewide proposition reinstating the death penalty in California 40 years ago.
"Booker Disparity and Data-Driven Sentencing"
The title of this post is the title of this notable new article now available via SSRN authored by Joshua Divine. Here is the abstract:
Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade. Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case. The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity. The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.
This Article is the first to propose a system — data-driven appellate review — that curbs sentencing disparity without re-introducing unwarranted uniformity. Congress should establish a rebuttable presumption that outlier sentences among similar offenders are unreasonable. The U.S. Sentencing Commission collects data on over 70,000 criminal cases annually. This data provides the tool for defining categories of similar offenders. Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges and would therefore curb the increase in inter-judge disparity without resorting to unwarranted uniformity.
March 7, 2017 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Reviewing the ugly backstory of SCOTUS dicta on sex offender recidivism
Today's New York Times has this intriguing new Sidebar article by SCOTUS reporter Adam Liptak under the headline "Did the Supreme Court Base a Ruling on a Myth?". Here are excerpts:
Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders. “This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.
The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.
But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.
Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.
He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department. The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.
The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.
That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal....
A 2014 Justice Department report found ... that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals. In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years....
Lower courts generally accept what the Supreme Court says. That is true not only about the law but also about facts subject to independent verification. Last year, though, the federal appeals court in Cincinnati gently suggested that the Supreme Court had taken a wrong turn in its 2003 decision in Smith v. Doe. Judge Alice M. Batchelder, writing for a unanimous three-judge panel, described “the significant doubt cast by recent empirical studies on the pronouncement in Smith that ‘the risk of recidivism posed by sex offenders is “frightening and high.’” The appeals court struck down a particularly strict Michigan sex-offender law as a violation of the Constitution’s ex post facto clause, saying it retroactively imposed punishment on people who had committed offenses before the law was enacted.
The state has asked the Supreme Court to consider the case, Does v. Snyder, No. 16-768. The first paragraph of its petition says that the risk of recidivism “remains ‘frightening and high.’” The constitutional question in the case is interesting and substantial. And hearing the case would allow the court to consider more fully its casual assertion that sex offenders are especially dangerous.
Monday, March 6, 2017
"Rationing Criminal Justice"
The title of this post is the title of this notable new article now available via SSRN and authored by Richard Bierschbach and Stephanos Bibas. Here is the abstract:
Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects.
Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps. As these tools highlight, scarcity often works not as a bug but as a design feature. Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture. But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.
Interesting new Quick Facts on federal health care fraud sentencing from the US Sentencing Commission
The US Sentencing Commission has released this notable new Quick Facts covering federal sentencing in health care fraud cases. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.") Here are a few of the intriguing data details from the the publication highlighting that within-guideline sentencing is actually the exception rather than the norm in these cases:
During the past three years, the rate of within range sentences for health care fraud offenders has decreased from 43.6% in fiscal year 2013 to 32.9% in fiscal year 2015.
In each of the past three years, approximately one-fifth to one-third of health care fraud offenders received a sentence below the applicable guideline range because the government sponsored the below range sentence....
In each of the past three years, approximately 34 percent of health care fraud offenders received a non-government sponsored below range sentence.
Could and will SCOTUS Pena-Rodriguez decision create new ways attack death sentences (and even other jury sentencing outcomes)?
The question in the title of this post was the first idea that jumped into my sentencing-addled mind as I was (too) quickly reviewing the Supreme Court's Sixth Amendment work today in Pena-Rodriguez v. Colorado (basics here, full opinion here). Critically, the Pena-Rodriguez decision concerns a jury's deliberation about guily, and the opinion keeps referencing a juror's "vote to convict." But, in some cases in some states, jurors also have a role in sentencing, and this is most common and most consequential in the context of capital cases. And there is lots of dicta in Pena-Rodriguez that surely could, and I would guess often will, be stressed by capital defendants trying to throw shade on a jury's capital sentencing decision-making. Consider, as just one example, these passages:
[R]acial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy....
A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.
As those who follow debates over the death penalty know well, many who advocate abolition often assert that capital punishment's administration through often seemingly disparate jury verdicts reveals a certain kind of "racial bias [as] a familiar and recurring evil" that contributes to "a systemic loss of confidence in jury verdicts." (Consider, for example, this page at the Death Penalty Information Center spotlighting racial patterns in death penalty administration.) In light of those views, as well as the obligation and zeal of defense attorneys to raise every non-frivolous argument to contest a death sentence, I have reason to think the capital defense bar could, should and will be making much of today's SCOTUS work in Pena-Rodriguez.
Formalism (and floodgate/functionality fears?) prevail over functional analysis in Beckles
I was involved in preparing an amicus brief in the Beckles case decided by the Supreme Court this morning (basics here, full opinion here), and that brief argued (unsuccessfully) that the advisory federal sentencing guidelines should be subject to vagueness challenges. The argument was, in its essence, a functional one highlighting the significant impact that guideline calculations still have on sentencing outcomes even though they are advisory. Justice Sotomayor's separate opinion in Beckles, though concurring on narrow grounds, wholly embraced this functional argument to make the case that the guidelines should be subject to vagueness challenges. Here are some passages from her extended decision that capture her functional perspective (with cites omitted, but key emphasis from original):
In most cases, it is the range set by the Guidelines, not the minimum or maximum term of imprisonment set by statute, that specifies the number of years a defendant will spend in prison. District courts impose a sentence within the Guidelines (or below the Guidelines based on a Government motion) over 80% of the time. And when Guidelines ranges change — because the Guidelines themselves change, or because the court is informed of an error it made in applying them — sentences change, too. It is therefore no exaggeration to say that the Guidelines are, in a real sense, the basis for the sentence imposed by the district court....
As set out above, although the Guidelines do not bind a district court as a formal matter, as a functional matter they anchor both the district court’s discretion and the appellate review process....
Absent that Guideline, Beckles would have been sentenced to between 33 and 98 fewer months in prison. The District Court admitted as much, explaining that had the Guideline not applied, she “would not have imprisoned Beckles to 360 months” in prison. Years of Beckles’ life thus turned solely on whether the career-offender Guideline applied. There is no meaningful way in which the Guideline exerted less effect on Beckles’ sentence than did the statute setting his minimum and maximum terms of imprisonment; indeed, it was the Guidelines, not just the statute, that fixed Beckles’ sentence in every meaningful way. Nothing of substance, in other words, distinguishes the Guidelines from the kind of laws we held susceptible to vagueness challenges in Johnson; both law and Guideline alike operate to extend the time a person spends in prison. The Due Process Clause should apply equally to each.
Notably, as Justice Sotomayor highlights in various ways in her opinion, this kind of functional concern with the continued importance of advisory guideline calculations drove the majority opinions in prior recent cases like Peugh dealing with application of the Ex Post Facto clause and Molina-Martinez dealing with plain error review. But this time around, a more formalistic approach carried the day.
As my post title here suggests, I think the formalistic approach to application of the vagueness doctrine at sentencing prevail because a number of key Justices, particularly perhaps the Chief and Justice Kennedy, may have been especially concerned about what a "vagueness at sentencing" doctrine could end up looking like and how often it might arise. Notably, Justice Kennedy authored an intriguing little concurrence in Beckles that suggests he is concerned about arbitrary sentencing, but was here even more concerned about application of traditional vagueness doctrine to sentencing. Here is what Justice Kennedy had to say:
As sentencing laws and standards continue to evolve, cases may arise in which the formulation of a sentencing provision leads to a sentence, or a pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns. In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed. That something is vague as a general matter, however, does not necessarily mean that it is vague within the well-established legal meaning of that term. And it seems most unlikely that the definitional structure used to explain vagueness in the context of fair warning to a transgressor, or of preventing arbitrary enforcement, is, by automatic transference, applicable to the subject of sentencing where judicial discretion is involved as distinct from a statutory command. See Johnson v. United States, 576 U. S. ___ (2015).
The existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing. Some other explication of the constitutional limitations likely would be required.
Though I find intriguing the suggestion by Justice Kennedy that there could and sould be "some other explication of the constitutional limitations" on the realm of judicial discretion in sentencing, the ruling in Beckles may itself ensure that such an explication never gets developed in the context of the Due Process Clause. (Whether Justice Kennedy and others might explicate such limits in non-capital sentencing as they have in capital sentencing through the Eighth Amendment might still be ripe with possibilities.)
SCOTUS rules in Pena-Rodriguez that Sixth Amendment creates exception to jury impeachment rule when racial animus revealed
A split Supreme Court weighed in on the intersection of racial bias and jury decision-making via a notable Sixth Amendment ruling in Pena-Rodriguez v. Colorado, No. 15–606 (S. Ct. March 6, 2017) (available here). Here is how Justice Kennedy's opinion for the Court gets started and concludes:
The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.
In the era of our Nation’s founding, the right to a jury trial already had existed and evolved for centuries, through and alongside the common law. The jury was considered a fundamental safeguard of individual liberty. See The Federalist No. 83, p. 451 (B. Warner ed. 1818) (A. Hamilton). The right to a jury trial in criminal cases was part of the Constitution as first drawn, and it was restated in the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6. By operation of the Fourteenth Amendment, it is applicable to the States. Duncan v. Louisiana, 391 U. S. 145, 149–150 (1968).
Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense. A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the no-impeachment rule. The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict....
The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.
The start of the dissenting opinion by Justice Thomas explains his concerns and the core concerns of the other dissenters (which are expressed via an opinion by Justice Alito joined by the Chief and Justice Thomas):
The Court today holds that the Sixth Amendment requires the States to provide a criminal defendant the opportunity to impeach a jury’s guilty verdict with juror testimony about a juror’s alleged racial bias, notwithstanding a state procedural rule forbidding such testimony. I agree with JUSTICE ALITO that the Court’s decision is incompatible with the text of the Amendment it purports to interpret and with our precedents. I write separately to explain that the Court’s holding also cannot be squared with the original understanding of the Sixth or Fourteenth Amendments.
SCOTUS rules in Beckles that federal advisory guidelines are not subject to Due Process vagueness challenges
The Supreme Court this morning issued a big opinion concerning the operation of and challenges to the federal sentencing guidelines in Beckles v. United States, No. No. 15–8544 (S. Ct. March 6, 2017) (available here). Here is how the opinion authored by Justice Thomas gets started:
At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness. Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.
After the oral argument tone in this case, I am not surprised to see this result. But I expect I may have more to say about the particulars of this Beckles ruling in the coming hours and days. To begin, I think the sentiments in the closing section of the opinion of the Court best accounts for the Beckles outcome:
In addition to directing sentencing courts to consider the Guidelines, see §3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The Government concedes that “American judges have long made th[e] sorts of judgments” called for by the §3553(a) factors “in indeterminate-sentencing schemes, and this Court has never understood such discretionary determinations to raise vagueness concerns.” Brief for United States 42. Because the §3553 factors — like the Guidelines — do not mandate any specific sentences, but rather guide the exercise of a district court’s discretion within the applicable statutory range, our holding today casts no doubt on their validity.
Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as §4B1.2(a)’s residual clause. For example, courts must assess “the need for the sentence imposed” to achieve certain goals — such as to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” and “provide the defendant with needed educational or vocational training . . . in the most effective manner.” §3553(a)(2). If petitioner were correct that §4B1.2(a)’s residual clause were subject to a vagueness challenge, we would be hard pressed to find these factors sufficiently definite to provide adequate notice and prevent arbitrary enforcement.
The Government tries to have it both ways, arguing that the individualized sentencing required by the other §3553(a) factors is different in kind from that required by the Guidelines. “An inscrutably vague advisory guideline,” it contends, “injects arbitrariness into the sentencing process that is not found in the exercise of unguided discretion in a traditional sentencing system.” Reply Brief for United States 10–11. But it is far from obvious that the residual clause implicates the twin concerns of vagueness any more than the statutory command that sentencing courts impose a sentence tailored, for example, “to promote respect for the law.” §3553(a)(2)(A). And neither the Guidelines nor the other §3553 factors implicate those concerns more than the absence of any guidance at all, which the Government concedes is constitutional.
The Government also suggests that the Guidelines are not like the other §3553(a) factors “because they require a court to decide whether the facts of the case satisfy a legal standard in order to derive a specific numerical range.” Id., at 22. But that does not distinguish the other sentencing factors, which require courts to do the same thing. Section 3553(a) states that district courts “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§3553(a)(2)].” In fact, the Guidelines generally offer more concrete advice in imposing a particular sentence and make it easier to review whether a court has abused its substantial discretion. There is no sound reason to conclude that the Guidelines — but not §3553(a)’s other sentencing factors — are amenable to vagueness review.
No grants, but latest SCOTUS order list still has lots of intrigue for criminal justice fans (especially those concerned with risk-assessment sentencing)
The Supreme Court this morning released this order list, and it is extended because there is a summary per curiam GVR in a Nevada capital case (available here) and a trio of extended statements concerning the denial of cert (two of which were authored by Justice Thomas and one of which comes from Justice Sotomayor). I would comment at length about these matters, but SCOTUS has provided bigger sentencing fish to fry by also deciding the Beckles vagueness case today (discussed here).
For hard-core sentencing fans, perhaps the most intriguing aspect of the order list is this item:
16-6387 LOOMIS, ERIC L. V. WISCONSIN
The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.
As some may recall from some prior postings, Loomis concerns a due process challenge to the use of risk-assessment instruments at sentencing. It will be very interesting to see what the Trump Administration decides to say in this case and to see if SCOTUS ultimately takes up this timley and consequential issue.
Prior related posts on Loomis case:
- Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
- Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
- Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
Sunday, March 5, 2017
Continuing efforts to unwind felon disenfranchisement in some states
The Wall Street Journal has this notable new article headlined "States Ease Restrictions on Voting by Felons: Florida proposal to lift its lifetime ban would add to a nationwide trend." Here are excerpts:
Mr. Meade is among an estimated 6.1 million felons who have served their time and lost their right to vote, of whom about 1.7 million live in Florida. Virginia, Kentucky and Iowa are the only other states with lifetime voting bans, which can be lifted only through the clemency process. Other states impose waiting periods or require felons to complete parole or probation requirements.
Mr. Meade plans to be in the courtroom Monday when the Florida Supreme Court reviews a proposed constitutional amendment to allow felons, except for murderers and sex offenders, to vote after they finish their sentences, parole and probation. The court will decide whether the measure meets standards to go before voters, provided it gets enough signatures; Mr. Meade, as head of Floridians for a Fair Democracy, is leading the petition drive to put the amendment on the 2018 ballot.
“To be shut out of the democratic process is like a perpetual punishment and slap in the face saying you’re never going to be a citizen,” said Mr. Meade, a 49-year-old father of five. “I paid my debt to society and served my time. Now I should have the opportunity to have my voice heard.”
Since 1997, 23 states have made it easier for people with felony convictions to vote again, according to the Sentencing Project, which advocates an overhaul of crime laws. This year, Nebraska is considering a bill that would eliminate a two-year waiting period.
Critics of automatic restoration of voting rights argue that voting is a responsibility, not a right, and that felons should have to take steps to earn that right after leaving prison. President Donald Trump attacked Democratic Virginia Gov. Terry McAuliffe for using executive orders to restore voting rights to felons after release from prison. “He’s letting criminals cancel out the votes of law-abiding citizens,” Mr. Trump told a rally in Leesburg, Va., the day before his election.
The efforts in Florida and Virginia reflect a nationwide push by criminal-justice activists to alleviate what they call “collateral consequences” of incarceration. In many states, felons released from prison are barred from getting certain occupational licenses, public housing, food stamps and other government assistance. That makes it harder for ex-inmates to get back on their feet, some criminal-justice experts say....
In 2007, then-Gov. Charlie Crist of Florida, and his cabinet, relaxed the rules to make it easier for felons to vote after leaving prison. During the former Republican’s one term, more than 155,000 felons regained their voting rights. Mr. Crist is now a Democratic member of Congress.
Beginning in 2011, under current Gov. Rick Scott, with support from state Attorney General Pam Bondi, felons had to wait at least five law-abiding years before applying to a clemency board. Applications for clemency plunged after the board, which includes Mr. Scott and Ms. Bondi, implemented the new wait time. Since Mr. Scott’s election in 2010, 2,487 people with felony convictions have regained access to the polls....
In Kentucky and Iowa, efforts by Democratic governors to make it easier for felons to vote were reversed by their Republican successors. Many Republicans see restoration of voting rights as a strategy by Democrats to add more African-Americans, who make up a disproportionate share of the prison population, to the voting rolls; Democrats see GOP opposition as tantamount to suppressing the black vote.
Rep. Carlos Curbelo (R., Fla.), one of the only GOP officials to sign the petition supporting the constitutional amendment, said the issue should transcend partisanship. After the court decides whether it qualifies for the ballot, the amendment would need roughly 750,000 signatures; to take effect, it needs approval from 60% of voters. “If you can’t give people a way to get back on their feet and become fully active citizens once they’ve served their time, then it’s only a matter of time before they end up back behind bars,” Mr. Curbelo said.
Five years after his SCOTUS victory, Evan Miller scheduled to be resentenced
This local article, headlined "Re-sentencing of Evan Miller ordered by US Supreme Court set for March 13," reports on the upcoming resentencing of a defendant's whose surname now represents a big part of modern "kids-are-different" Eighth Amendment jurisprudence. Here are some of the particulars from the article, which prompts some questions for me:
A sentencing hearing has been scheduled for March 13 in Lawrence County for Evan Miller, whose original sentence on a capital murder conviction was overturned by the U.S. Supreme Court and led to sentencing laws being changed for juveniles nationwide.
The Supreme Court in 2012 ordered that Miller be re-sentenced because the state’s only sentencing option for a juvenile convicted of capital murder was life in prison without the chance of parole. A state law adopted last year now gives a judge the option of sentencing a juvenile convicted of capital murder to life in prison with the chance of parole after serving at least 30 years in prison.
Miller, now 28, was convicted of capital murder in 2006 for the 2003 killing of Cole C. Cannon in Cannon’s home in a Five Points mobile home park. Miller, who was 14 when the beating death occurred, is an inmate at St. Clair Correctional Facility in Springville.
Cannon’s daughter, Cindy Cheatham, said she thinks next month’s sentence hearing before a jury will be the the last court proceeding for the Cannon family in the case. “Even though there is anticipation, it makes me sort of edgy and emotional,” Cheatham said. “I’m ready for it to be over. But it will never really be over.”...
When Miller was sentenced in 2006, Circuit Court Judge Philip Reich, who is now retired, sentenced Miller to life in prison without the possibility of parole. The only sentences allowed by state law at the time for capital murder were the death penalty or life in prison without parole. Reich could not sentence Miller to death because the Supreme Court in 2005 declared the death penalty for defendants younger than age 18 to be unconstitutional.
The Equal Justice Initiative appealed Miller’s sentence to the Supreme Court, which voted 5-4 that the state must have another sentencing option available for juveniles in a capital case other than life without parole. The court sent the case back to Lawrence County for re-sentencing. The new state law that a juvenile can be eligible for parole after 30 years does not preclude a judge from sentencing a juvenile capital murder defendant to life in prison without parole.
My first question after reading this article concerned why it took nearly five years for Evan Miller to have a resentencing, but this local article from last year suggests that resentencing was delayed until the Alabama legislature created a "Miller fix" in its sentencing law. That "fix" now gives an Alabama judge, as detailed above and more fully in this local article, in this kind of case the discretion to impose LWOP or life with a chance at parole after 30 years.
But when remains unclear to me is why Evan Miller is apparently scheduled to appear before a jury at resentencing. I suspect this may be because technically he is being resentenced on a capital conviction, but some have suggested in this juve sentencing setting that the Supreme Court's work in Miller and the follow-up case Montgomery, combined with the Apprendi line of cases, now requires a jury finding of "irreparable corruption" to permit giving a juve an LWOP sentence. I would be grateful to hear from anyone in the know about Alabama sentencing procedures about why this article talks about Miller's upcoming sentence hearing being "before a jury."
"Women in Prison: Should they be treated differently from men?"
The title of this post is the title of a lengthy new examination of the incarceration rates of women in recent years just published here by the CQ Researcher, which seeks to provide "in-depth reporting on issues in the news." The full report requires a subscription, but here is the preview via the CQ Researcher website:
The number of women in state and federal prisons has surged since 1978 by nearly 800 percent — twice the growth rate for men. Mandatory sentences for drug offenses enacted during the 1980s and 1990s have hit women particularly hard, many experts say. But some prosecutors and Republicans dispute the claim that the so-called war on drugs has disproportionately hurt women. They say mandatory sentencing has reduced crime, helped break up drug rings and ended sentencing disparities.
Reformers hope states' recent efforts to reduce prison populations and spend more on drug treatment will help women. But they say women still remain an afterthought in the penal system. For example, reformers say courts and prisons rarely recognize women's responsibility as mothers or the factors underlying their participation in crime, such as domestic abuse. The justice system, women's advocates say, needs to think creatively about how to help female prisoners. Meanwhile, in the juvenile system, girls often receive harsher punishments than boys who commit similar offenses.
Deep dive into litigation over Chicago “Stash House Stings”
Because the President of the United States has often expressed concerning about crime in Chicago and has tweeted about sending in the feds, I hope the Prez and his advisers find time to check out this recent lengthy Chicago Tribune article about some of the work of the feds in this city in the recent past. The article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," merits a full read, and here is an extended taste:
For four years, Mayfield had been struggling to turn his life around after more than a decade in prison. To escape the street life, he moved to Naperville with his fiancee's family and managed to find a full-time job at a suburban electronics facility that paid 12 bucks an hour. It was there that a co-worker lured him into the robbery after weeks of effort, promising a big score.
Now, inside the police vehicle, the sounds of flash-bang grenades still ringing in his ears, Mayfield started to piece it all together. There was no stash house, no cartel drugs or associates to rob. It was a crime dreamed up by federal authorities and carried out with the help of Mayfield's co-worker to reel him in when he was at his most vulnerable.
Eight years later, Mayfield, 48, and dozens of others are at the center of a brewing legal battle in Chicago's federal court over whether the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' signature sting operation used racial bias in finding its many targets.
A team of lawyers led by the University of Chicago Law School is seeking to dismiss charges against more than 40 defendants in Chicago. The undercover probes, a staple of the ATF since the mid-1990s, have ensnared hundreds of defendants across the country. A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.
The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.
Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings....
Earlier this month, federal prosecutors filed a lengthy motion vehemently disputing that minorities were unfairly targeted in the stash house cases, saying the expert report filed by the defense was "riddled with false assumptions that were designed to manufacture a racial disparity where none exists." The dispute sets up what could be an unprecedented hearing at the Dirksen U.S. Courthouse in the coming months involving a panel of district judges hearing the multiple criminal cases at once.
"It's almost like a criminal class action," said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School, which represents most of the defendants in the dozen cases they are seeking to be dismissed. "Judges are seeing this as a coordinated litigation. It's a very unusual situation."...
According to the ATF, stash house stings are a key part of the agency's national effort to target people who "show a propensity of doing harm to the public through violent behavior." Launched in Miami during the cocaine-war days of the early 1990s, the stings have been honed over the years and are run by experienced agents who use a tightly controlled playbook.
They typically begin when an informant provides the ATF information about a potential target who has expressed interest in taking part in a robbery. The informant then introduces the target to an undercover agent who poses as a disgruntled courier for a drug cartel and offers an opportunity to steal large quantities of drugs from a stash house guarded by men with guns.
In a series of conversations captured on undercover wire, the target is told if he is interested he must assemble an armed team to commit the robbery. The target and his crew are arrested after they show up on the day of the supposed crime. "At the time of arrest, the home invasion defendants are poised, at any moment, to invade a stash house, steal kilograms of cocaine guarded by armed cartel members, and in the process, kill or be killed," prosecutors wrote in their recent court filing.
In order to avoid arguments of entrapment in court, the stings are supposed to target only established robbery groups. ATF criteria also require that at least two of the participants have violent backgrounds and that all must be criminally active at the time the investigation is launched. Not only were the operations a boon for the ATF but the resulting prosecutions also netted eye-popping sentences — sometimes up to life in prison — in part because defendants were criminally liable for the amount of imaginary drugs they believed they were stealing. It didn't matter that the robbery was fake or that no drugs actually existed....
The lengthy sentences were just one pattern that raised red flags for the criminal defense bar. In case after case, the ATF stings seemed to be targeting only minorities. In early 2013, a handful of private attorneys and assistant federal defenders, all veterans at the Dirksen U.S. Courthouse, were so troubled by a stash house case they were defending that they asked the U.S. attorney's office for a complete list of all the defendants in similar cases sorted by race. Prosecutors rebuffed this admittedly unorthodox request. "ATF does not maintain statistics on the nature in question at either the local or national level," Assistant U.S. Attorney Philip Fluhr wrote in response, court records show.
The defense lawyers then asked the judge overseeing the case to order prosecutors to turn over detailed information on how the stash house stings are run and the race of the defendants who had been charged so far. They included their own research showing more minorities were targeted. Prosecutors strenuously objected. But a few months later, U.S. District Chief Judge Ruben Castillo allowed the discovery to go forward. "History has shown a continuing difficult intersection between the issue of race and the enforcement of our nation's criminal laws," wrote Castillo, concluding that the defense team had "made a strong showing of potential bias."
Similar motions in other stash house cases soon followed, but the effort to prove racial bias was being made case-by-case with no coordination. Then in 2014, the University of Chicago's Federal Criminal Justice Clinic agreed to focus all its efforts on the 12 stash house cases and their 43 defendants. This allowed the defense attorneys to address the alleged racial bias in a coordinated effort, a critical undertaking given the government's massive resources, the attorneys said....
As the movement to fight the stash house cases gathered steam among defense attorneys, the judiciary also weighed in with some key decisions. In November 2014, the full 7th Circuit U.S. Court of Appeals granted Mayfield a new trial in a rare decision that concluded Potts had "targeted Mayfield at a moment of acute financial need and against a backdrop of prolonged difficulty finding permanent, family-supporting work."
In a 2012 dissenting opinion as the case was winding through the court, appellate Judge Richard Posner had put an even finer point on it, referring to the stings as a "disreputable tactic" that used government informants to target people at a vulnerable time in their lives. Meanwhile, another ruling in July 2015 by the appellate court in Chicago resulted in the government turning over more data on the stash house stings sought by the defense. The ruling allowed the defendants to move ahead with what is believed to be the most thorough analysis of the stings anywhere in the country....
The debate is now potentially headed for a court hearing involving all defendants. The outcome could set precedent for judges in other states. "Courts tend to give law enforcement a lot of leeway," said University of California-Irvine law professor Katharine Tinto, a criminal law expert who has written extensively about the stash house stings. "… The fact that an expert is saying a federal law enforcement agency is discriminating on the basis of race is something everybody should be watching."
Friday, March 3, 2017
Making the case for fixing private prisons in the Trump era
Lauren-Brooke Eisen has this notable new commentary in Fortune headlined "How President Trump and Jeff Sessions Can Fix America’s Private Prisons." Here are excerpts:
Last week, Attorney General Jeff Sessions ... issued a memo reversing the Obama administration’s decision to phase out its use of private prisons at the federal level. This memo followed the release of a U.S. Justice Department report in August concluding that privately-operated prisons experienced more safety and security incidents than facilities operated by the Federal Bureau of Prisons did.
Since Sessions appears determined to move forward regardless, now is the right time to evaluate how to improve upon how the Justice Department contracts with private corporations to run some of its prisons. With a businessman in charge of the White House, this provides an opportunity to change private prisons for the better. A good first step would be to restructure contracts to make private facilities more accountable, effective, and strategic in their use of resources....
Although the new attorney general’s shift in policy only affects a little more than 21,000 inmates out of 126,300 inmates housed in state and federally contracted private prison facilities across the country, it points to the Trump administration’s likely reliance on the private prison industry over the next few years. Currently, the federal government primarily uses private prisons to house non-citizens convicted of crimes, and most face deportation upon release. The president’s recent executive actions cracking down on unauthorized immigration will likely swell the private prison rolls even more, further expanding the industry....
With an expansion of for-profit prisons on the horizon, it is more important than ever that the government restructure contracts with the private prison industry to boost performance and change incentives. Conducting field research for my upcoming book, I found that it is rare for contracts with private prison companies to demand fresh thinking, recidivism reduction, and outcomes that outperform the public sector. Most contracts require the private operator to simply replicate the government prison system’s procedures.
Rather than repeat this approach, both the federal government and state governments should write contracts to ensure that economic incentives focus on reducing recidivism and improving outcomes for the nation’s inmates, not just warehousing as many people as possible....
In 2013, former Republican Gov. Tom Corbett’s administration announced it would cancel all the state’s Department of Corrections contracts with private community corrections companies and rebid them on a performance basis. Providers were then evaluated on and paid according to their success at reducing the recidivism levels of those who had just been released from prison. The state could cancel a contract if the recidivism rate increased over two consecutive year-long periods. After these contracts were implemented, the recidivism rate for private facilities fell 11.3 percent in just the first year.
Restructuring contracts around the nation’s public policy goals would ensure that private operators provide more educational programming, job training classes, and work with their inmates to ensure they are set up for optimal success once they are eventually released. Providing incentives to private firms to exceed baselines — such as improved recidivism rates — is an effective carrot, versus creating penalties for basic contract breaches like failing to receive basic accreditation or meet minimum standards.
Reimagining how private prisons operate and are held accountable does not need to be an academic exercise. Building the proper incentives into their contracts has the power to move the for-profit prison industry away from focusing on cost-cutting and filling its beds to make an extra dollar. Imagine a world where private prison operators earned bonuses if their inmates received top-tier educational programming and vocational skills classes instead of guaranteed bed occupancies. It’s possible that private prisons could begin marketing themselves to directors of corrections as leaders in recidivism reduction and reentry preparation.
Private prisons are here to stay under the new administration. Let’s at least make them work better.
"The Return of the Firing Squad"
The title of this post is the headline of this lengthy new US News & World Report article, which carries this subheadline: "The execution method is making a comeback — but some argue that means the end of capital punishment is near." Here are excerpts:
An ongoing shortage of lethal injection drugs — coupled with the grisly spectacle of botched executions and a number of legal challenges to the use of less-effective substitute drugs — has several states, and at least one inmate, calling for the return of the firing squad.
In 2015, Utah Gov. Gary Herbert, a Republican, signed a bill that established firing squads as an execution option, reversing an 11-year ban.... In Mississippi, a bill authorizing firing squads cleared the state House in early February before the state Senate shot it down. Firing squads are on the books in Oklahoma, and lawmakers in other Southern states are said to be considering similar legislation.
Meanwhile, in late February, the U.S. Supreme Court denied the request by Thomas Arthur, an Alabama death-row prisoner who wanted the state to fatally shoot him rather than subject him to the likelihood of a painful death from secret, experimental lethal-injection drugs.
But Supreme Court Justice Sonia Sotomayor excoriated her colleagues for tacitly endorsing execution methods that could reasonably be considered as cruel or inhumane — and she pointed to firing squads as the way to go. "Some might find this choice regressive, but the available evidence suggests that a competently performed shooting may cause nearly instant death," Sotomayor wrote in a blistering dissent. "In addition to being near instant, death by shooting may also be comparatively painless. And historically, the firing squad has yielded significantly fewer botched executions."
Death penalty opponents, however, say firing squads aren't fail-safe, the condemned don't always die immediately and the procedure smacks of tin-horn dictatorships, undermining America's global standing as a champion of human rights. That states are looking to salvage the practice, they say, is yet another sign that capital punishment is on its way out.
"I think that the death penalty is in big trouble in the United States," says Austin Sarat, an associate dean and law and political science professor at Amherst College. "The legitimacy of capital punishment has been sustained in part by the belief that we could find a way of execution that would be safe, reliable and sane," says Sarat, the author of "Gruesome Spectacles: Botched Executions and America's Death Penalty." He notes the same arguments officials are making for the firing squad — it's quick, it's humane, it's reliable — were the same ones proponents used for lethal injections as its more clinical, civilized replacement. "It's a back-to-the-future [method] that was replaced for a reason," Sarat says....
"The elusive search in the modern era for humane methods of execution was a reaction to the perceived barbarity of death by methods like the firing squad," Phyllis Goldfarb, a George Washington University law professor, writes in an email. "Death by firing squad is not pain- and botch-free," Goldfarb writes, noting some marksmen have missed the heart target and hit other parts of the body, while others have fired prematurely. "The condemned dies from blood loss and loses consciousness when blood supplied to the brain drops precipitously. Even when the people in the firing squad hit their target as intended, it may take at least a couple of minutes for the condemned to die and sometimes much longer."
To that point, firing-squad proponents have a quick retort: So what? "How could a civilized society place a man before a firing squad, [opponents] ask," writes Joseph R. Murray II, a guest columnist for the Jackson, Miss., Clarion Ledger, commenting on the debate over the state's proposal to have inmates die by the bullet.
"To these folks, that's third-world justice. But isn't a firing squad the most humane way to execute a criminal? Isn't death instantaneous?" Murray asks. "Where lethal injection could go awry, causing prolonged pain, and electrocution could not work effectively, there is no doubt multiple bullets do the job quickly and safely."
Goldfarb says if authorities want to be absolutely certain that an inmate dies instantly without pain or suffering, they can choose another target on the body. "Firing a gun at point blank range into the head" is 100 percent effective, and "would cause a near-instantaneous death. But it would be exceedingly violent and destructive," Goldfarb writes. "But could we ask someone to inflict that kind of violence on another as part of their job as a state employee? If the state were to authorize such a gruesome spectacle in the name of law, how could we maintain our standing in the world as a protector of human rights?"
Still, she predicts the firing squad debate could go far in the current law-and-order climate ushered in with President Donald Trump's inauguration. "I see the present moment as one in which fair debate based on factual evidence is being threatened and 'fear of the other' who would use violence to harm 'us' is being fanned for political gain," she writes. "These are the emotional conditions that have allowed the death penalty to persist in America — providing a simple answer to a complex problem."
Still, "there may be pockets of renewed death penalty support, using whatever methods are permitted," writes Goldfarb. "But I don't think that approach will become widespread again, as it degrades us as a society and depends on rhetoric that is divisive, cynical, extremely racialized, and ultimately corrosive to America."
Thursday, March 2, 2017
Washington Supreme Court rules Eighth Amendment precludes applying mandatory minimum adult sentencing scheme to juvenile offenders
The Supreme Court of Washington issued a very significant new ruling expanding the reach of the Eighth Amendment as adumbrated by the Supreme Court in Graham and Miller. The extended ruling in Washington v. Houston-Sconiers, No. 92605-1 (Wash. March 2, 2016) (available here), gets started this way:
"[C]hildren are different." Miller v. Alabama,_ U.S. _, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); U.S. CONST. amend. VIII. The defendants in this case -- Zyion Houston-Sconiers and Treson Roberts -- are children. On Halloween night in 2012, they were 17 and 16 years old, respectively. They robbed mainly other groups of children, and they netted mainly candy.
But they faced very adult consequences. They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers. They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules. And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.
As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison. Clerk's Papers (Houston-Sconiers) (CPHS) at 227. Of that, 3 72 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time,"' meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e). Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154. Of that, 312 months (26 years) would be "'flat time"' attributable to the firearm sentence enhancements. Id.
To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.
We now hold that the sentencing judge's hands are not tied. Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there. We affirm all convictions but remand both cases for resentencing.
March 2, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (10)
"The externalities problem is acute in criminal justice for two reasons."
The title of this post is a line from this interesting new essay by Richard Bierschbach, over at online publication Regblog produced by the University of Pennsylvania Law School. This essay is actually part of a fifteen(!)-part series on "Regulating Police Use of Force," but Richard makes some sentencing-specific points in his essay. Here are excerpts, with links from the original:
The externalities problem is acute in criminal justice for two reasons. First, we think of criminal justice as individual justice. Actors thus tend to view each case as an isolated transaction to the exclusion of broader, long-term, and aggregate effects. Second, criminal justice, especially American criminal justice, is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. No one player has the responsibility, incentives, or information to take systemic harms into account. And given the politics of criminal justice, democratic processes do little to correct this dynamic.
Police and other law enforcement systematically overuse force in part because few mechanisms require them to consider the full social costs of doing so. The costs of arrests, for instance, are substantial: arrests are frightening and humiliating, use valuable resources, and burden arrestees with lost income, arrest records, and other harms. Yet few of these costs fall on the police. So, too, for other coercive measures. Prosecutors and judges do not shoulder the full costs of pretrial detention, such as overcrowded jails, difficulties in mounting a defense, and personal and family trauma. Similarly, states pay for prisons, but local prosecutors’ decisions fill them. That “correctional free lunch” gives prosecutors little incentive to use prison judiciously, which helps explain why some counties dramatically overconsume it....
Cost-benefit analysis for sentencing and arrests. The U.S. Environmental Protection Agency, U.S. Securities and Exchange Commission, and other agencies have long had to defend their regulations in cost-justified terms. Why not hold sentencing and arrest guidelines to the same standard? The great virtue of cost-benefit analysis is that, if done rigorously, honestly, and transparently, it can surface and force consideration of all harms and gains—short- and long-term, concentrated and diffuse, and monetary and non-monetary (such as dignitary and distributive harms)—that a given policy option implicates. It is not hard to imagine how some draconian provisions of the federal sentencing guidelines or New York City’s stop-and-frisk policies might have come out differently, and wrought less social damage, if policymakers had subjected them to methodical cost-benefit testing that was open to robust public scrutiny and debate.
Such procedures help policymakers confront tough tradeoffs and encourage them to make more welfare enhancing decisions. As experience in states like Washington and Minnesota has shown, cost-benefit and other impact assessment procedures also provide politicians with a degree of political cover when making criminal justice policies. The broad consideration of costs also acts as a proxy for values and voices that get little traction in state legislative halls, helping to make criminal justice policies more representative of the entire population they serve....
Capping (and trading?) prison beds. Related to pricing are caps, which can also bring incentives back in line. In a number of contexts, such as arrests, caps might not be appropriate. But in other contexts, like prison, they could make sense. Just as a capping scheme limits the amount of clean air a coal plant can use in generating profits, so too could it limit the number of prison beds that local prosecutors can use in generating personal, political, and social gains.
A trio of criminal justice professors, Cheryl Jonson, John Eck, and Francis Cullen, have proposed how it might work. States could set a cap on the number of people who could be sentenced to prison each year. They could then allocate prison beds to each county or locality based on some metric — population size, violent crime rates, or something else. Localities could use those beds however they pleased, but once they hit their cap, they would have to pay the state for further imprisonments. The cap could be hard-and-fast, or it could be coupled with a trading system under which counties that do not use all of their beds could sell them to other counties, sell them back to the state, or roll them over for later use. Either way, the system would enhance accountability for criminal justice dollars and encourage cautious use of prison in ways the “correctional free lunch” does not.
Now, these sketches are just that. As University of Pennsylvania Law School Professor Stephanos Bibas and I discuss in a forthcoming article, serious issues would exist with each of these and related strategies. Even so, in states and localities across the country, variations on these themes — like cost-benefit analysis of sanctions in Washington, California’s Public Safety Realignment, or sentencing cost disclosures in Missouri — are increasingly appearing as policymakers confront the enormous toll of the carceral state. In this era of unprecedented openness to criminal justice experimentation, the time is ripe to move beyond our old transactional, fragmented, business-as-usual approach to criminal justice, and to see it for what it largely is: a morally laden and complex regulatory system, subject to many of the same failures and limitations that afflict other areas of regulation. That means we must think hard not only about how to do justice, but also about how to structure justice to administer it in the most socially-regarding way possible.
Leading congressional Dems calling upon AG Sessions to resign, which means.....?
As reported in this new ABC News article, "Sen. Chuck Schumer today joined several Democratic lawmakers in calling for Attorney General Jeff Sessions' resignation amid reports that he met with the Russian ambassador to the United States on two occasions, despite denying during his confirmation hearing that he had made contact with Russian officials." Here is more:
"The information reported last night makes it clear beyond the shadow of a doubt that Attorney General Sessions cannot possibly lead an investigation into Russian interference in our elections or come anywhere near it," the New York senator and minority leader said of revelations that Sessions had contact with the Russians last year.
He added: "There cannot be even the scintilla of doubt about the impartiality and fairness of the attorney general, the top law enforcement official of the land. After this, it's clear Attorney General Sessions does not meet that test. Because the Department of Justice should be above reproach, for the good of the country, Attorney General Sessions should resign.”
Schumer’s comments echoed those of House Minority Leader Nancy Pelosi Wednesday evening who said, "Jeff Sessions lied under oath during his confirmation hearing before the Senate. Under penalty of perjury, he told the Senate Judiciary Committee, 'I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians.’ We now know that statement is false."
For his part, Sessions said in a statement Wednesday night that, "I never met with any Russian officials to discuss issues of the campaign. I have no idea what this allegation is about. It is false."
Other Democratic lawmakers have called for Sessions to resign, while some say he should at least recuse himself from overseeing any investigation into the question of alleged ties between Trump officials and Russians during and after the 2016 election.
Rep. Tim Ryan, D-Ohio, and Rep. Elijah Cummings, D-Md., have called for his resignation, as has Sen. Elizabeth Warren, D-Mass., Sen. Kamala Harris, D-Calif., and Sen. Claire McCaskill, D-Mo. "It is inconceivable that even after Michael Flynn was fired for concealing his conversations with the Russians that Attorney General Sessions would keep his own conversations secret for several more weeks," said Cummings, who is the ranking Democrat on the House Committee on Oversight and Government Reform. "Attorney General Sessions should resign immediately."
According to a Justice Department official, Sessions' meetings with ambassadors were in his capacity as a senator on the Armed Services Committee and about relations between the two countries....
Many other lawmakers have stopped short of calling for resignation, but argued that the attorney general should recuse himself from leading Justice Department investigations over the alleged links between Russian officials and Trump officials, as well as Russia's purported involvement in influencing the 2016 election.
I am inclined to believe that AG Sessions and Prez Trump will resist these calls for the AG to resign over this latest Russian kerfuffle, but in all sorts of ways this development is disconcerting for the future work of the Department of Justice. Sessions seemed to me a controversial choice primarily because of his policy positions, and a whole lots of reputable folks were quick to assert that Sessions was a man of integrity who had the kind of values and character needed to be an effective Attorney General. This latest development would seem to weaken that claim and more broadly weaken Sessions' ability to be an effective AG.
UPDATE: The Attorney General has decided to recuse himself "from any matters arising from the campaigns for President of the United States." His full statement explaining that decision is available at this link. I suspect this will be more than good enough for Prez Trump and just good enough for most Republicans in Congress and not good enough for most Democrats in Congress.
"First, They Came for the Sex Offenders … "
The title of this post is the headline of this Slate commentary authored by Perry Grosssman that discusses Packingham v. North Carolina, the First Amendment case heard by the Supreme Court earlier this week (basics here). The sub-headline summarizes the piece's themes: "We must speak up for the rights of those on the fringes of society. The Supreme Court’s ruling on sex offenders’ First Amendment rights will signal how much protection we can all expect." Here are excerpts from the ends of an extended discussion of the case and its context:
Looming in the background of the court’s consideration of this case are the Trump administration’s recent attacks on the First Amendment, minority rights, judicial independence, and the rule of law itself. Though it’s a much different First Amendment context, President Trump’s executive order restricting travel by Muslims from seven countries is also a grossly overbroad restriction on a politically vulnerable minority that was enacted thanks to fearmongering, not evidence. As lower federal courts enjoined the executive order, President Trump attacked the legitimacy of those judges — who then received threats to their safety — while members of his administration implied that the courts had no right to question the president’s judgment on matters of national security. Factor in Trump’s claim that he was championing free speech when he threatened to withhold federal funds from UC–Berkeley after it canceled an event featuring Milo Yiannopoulos, and his promise to “open up our libel laws” to permit more lawsuits against the press, and it’s clear that the president’s guiding mode of constitutional interpretation is not originalism, but solipsism. The president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t. This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.
Go to any protest these days and you’re sure to see a sign invoking the words of Martin Niemöller, a Lutheran pastor who opposed the Nazis during the Second World War by famously stating, “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.” The message is simple but powerful: Speak up for the rights of those on the margins of society or you might yourself on the other side.
Court battles over the First Amendment have been frequently fought on behalf of unpopular groups as a means of preventing encroachment upon the rights of the rest. Justice Stephen Breyer recalled this heritage during argument when he pointed to criminal laws directed at prohibiting communists from advocating for the overthrow of the United States government that had been struck down 60 years ago. It is difficult to imagine a less popular group than registered sex offenders. But speaking up for their rights now is critical at a time when the administration has shown its eagerness to brand people with whom it disagrees as “enemies” and to strip rights from politically vulnerable groups like transgender students. And it has the fringe benefit of being a good strategy for making sure “they” don’t come for you too.
Remembering that many crimes go unreported to police and that those reported often go unsolved
John Gramlich writing for the Pew Reseach Center has this new data brief reviewing basic data on crime reporting and resolution. The piece is headlined "Most violent and property crimes in the U.S. go unsolved," and here is how it gets started and concludes:
Only about half of the violent crimes and a third of the property crimes that occur in the United States each year are reported to police. And most of the crimes that are reported don’t result in the arrest, charging and prosecution of a suspect, according to government statistics.
In 2015, the most recent year for which data are available, 47% of the violent crimes and 35% of the property crimes tracked by the Bureau of Justice Statistics were reported to police. Those figures come from an annual BJS survey of 90,000 households, which asks Americans ages 12 and older whether they were victims of a crime in the past six months and, if so, whether they reported that crime to law enforcement or not.
Even when violent and property crimes are reported to police, they’re often not solved – at least based on a measure known as the clearance rate. That’s the share of cases each year that are closed, or “cleared,” through the arrest, charging and referral of a suspect for prosecution. In 2015, 46% of the violent crimes and 19% of the property crimes reported to police in the U.S. were cleared, according to FBI data.
Reporting and clearance rates for violent and property crimes have held relatively steady over the past two decades, even as overall crime rates in both categories have declined sharply. Between 1995 and 2015, the share of violent crimes reported to police each year ranged from 40% to 51%; for property crimes, the share ranged from 32% to 40%. During the same period, the share of violent crimes cleared by police ranged from 44% to 50%; for property crimes, annual clearance rates ranged from 16% to 20%.
There are several caveats to keep in mind when considering statistics like these. Like all surveys, the BJS survey has a margin of error, which means that the share of violent and property crimes reported to police might be higher or lower than estimated. The FBI clearance rate data, for their part, rely on information voluntarily reported by local law enforcement agencies around the country, and not all departments participate.
The FBI’s clearance rates also don’t account for the fact that crimes reported in one year might be cleared in a future year. In addition, they count some cases that weren’t closed through arrest, but through “exceptional means,” such as when a suspect dies or a victim declines to cooperate with a prosecution....
When it comes to deadly crimes, Chicago has drawn widespread attention recently for its historically low murder clearance rate in 2016. But murder is actually the crime that’s most likely to be solved, at least when looking at national statistics. In 2015, 62% of murders and non-negligent homicides in the U.S. were cleared. That rate hasn’t changed much since 1995, but it’s far lower than in 1965, when more than 90% of murders in the U.S. were solved.
Wednesday, March 1, 2017
Is anyone tracking comprehensively data on resentencings (and release and recidivism) of those aided by Graham and Miller?
The question in the title of the post was recently posed to me, and I did not have a good answer. But this seems like a timely question now that it has been nearly a full seven years since Graham v. Florida declared LWOP unconstitutional for juvenile non-homicide offenders and five years since Miller v. Alabama declared mandatory LWOP unconstitutional for juvenile homicide offenders. (Of course, it has only been a year since SCOTUS in Montgomery v. Louisiana declared Miller fully retroactive and thereby required a number of states to start dealing with Miller's impact on prior offenders.)
I know that the Campaign for the Fair Sentencing of Youth a few months ago produced this publication about legal reforms in the wake of Graham and Miller under the title "Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children." But that report has more stories than numbers. Similarly, two 2015 reports from the public interest firm Phillip Black, titled "Juvenile Life Without Parole After Miller" and "No Hope: Re-examining Lifetime Sentences for Juvenile Offenders," look mainly at state litigation and legislative responses to Graham and Miller. The Fair Punishment Project has also done some significant work on juve LWOP, including some notable locality-specific analysis of post-Miller litigation, but I do not see any comprehensive or detailed data runs on its site. The Juvenile Law Center, which has played an integral role in a lot of post-Miller state-court litigation, helped produced this thoughtful and detailed report on the import and impact of Graham and Miller under the title "The Supreme Court and the Transformation of Juvenile Sentencing." But that report, which is already nearly two years old, also lacks any detailed empirics.
I have seen estimates of the population of juve LWOPers with sentences impacted by Graham and Miller to be around 2500, and I am hopeful and somewhat confident that someone somewhere is at least trying to track comprehensively data on how this population is being resentenced. But I have not yet seen such data published, and perhaps I am wrong to assume that it is being systematically collected.
Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month
There has so far been only four executions nationwide in 2017. The just concluded month of February had no executions, and this Death Penalty Information Center list of upcoming executions suggests that there are only two serious execution dates (both in Texas) for March. But this local article from Arkansas, headlined "Arkansas Governor schedules execution dates for 8 inmates," the Natural State could be poised for a record-setting April. Here are the details:
Arkansas’ governor on Monday set execution dates over a 10-day period in an attempt to resume the death penalty after a nearly 12-year hiatus, even though the state lacks one of three drugs needed to put the men to death. Gov. Asa Hutchinson signed proclamations scheduling double-executions on four days in April for the eight inmates. The quick schedule appears aimed at putting the inmates to death before another one of the state’s lethal injection drugs expire, and if carried out would mark the first time in nearly two decades a state has executed that many inmates in a month.
The move comes just days after the state’s attorney general told the governor the inmates had exhausted their appeals and there were no more legal obstacles to their executions. “This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time,” Hutchinson said in a statement.
The U.S. Supreme Court last week rejected the inmates’ request to review a state court ruling that upheld Arkansas’ lethal injection law. The state Supreme Court on Friday lifted the stay on its ruling, clearing the way for Arkansas Attorney General Leslie Rutledge to request the dates be set. Arkansas hasn’t executed an inmate since 2005 due to legal challenges and difficulties obtaining execution drugs.
The state’s supply of potassium chloride — one of three drugs used in lethal injections — expired in January. A prison system spokesman said Monday that the drug hasn’t been replaced, but Hutchinson’s office said officials were confident they could obtain more. And the state’s supply of midazolam lists an April 2017 expiration date, which pharmacy experts say is commonly accepted to mean the end of the month. The state’s supply of vecuronium bromide expires on March 1, 2018.
The inmates late Friday filed an amended complaint in state court aimed at blocking the executions, again arguing the lethal injection law and the three-drug protocol are unconstitutional. Attorneys for the inmates argued Monday in a letter to Hutchinson that the state Supreme Court’s stay is in place until that complaint is resolved. They said the current protocol “is almost certain to cause the prisoners excruciating suffering.”...
Since the U.S. Supreme Court reinstated the death penalty in 1976, only Texas has put eight people to death in a month — doing it twice in 1997. Arkansas has had multiple executions in the past, including triple executions in 1994 and 1997. At the time, the state Correction Department said multiple executions reduced stress on prison staff.
For a host of reasons, I will be surprised if Arkansas is able to move forward with eight executions over the last two weeks of April. But these developments certainly signal that the state is serious about getting its machinery of death up and running again ASAP.
Justices seem disinclined to limit federal judicial sentencing discretion in Dean
The US Supreme Court yesterday heard oral argument in Dean v. United States. The case will resolve a circuit split over whether federal district judges, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the firearm mandates. The oral argument transcript, available here, is a interesting read for a bunch of reasons. And I have a little summary of the argument posted here at SCOTUSblog. Here is how that posting starts:
It has now been more than a year since Justice Antonin Scalia passed away, but his jurisprudential spirit seemed to fill the courtroom yesterday as the Supreme Court heard oral argument in Dean v. United States. At issue in Dean is whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences. During the oral argument, several justices endorsed the government’s contention that allowing a judge to give a nominal sentence for the underlying predicate offenses in these circumstances would largely negate Congress’ purpose in enacting Section 924(c). But, echoing statutory interpretation principles that Scalia often championed in federal criminal cases, the justices also stressed that the text of the applicable sentencing statutes did not clearly foreclose the trial judge’s exercise of judicial sentencing discretion. This textualist point may carry the day for the defendant.
Tuesday, February 28, 2017
Telling comments about violent crime from AG Sessions in speech to NAAG
Attorney General Jeff Sessions gave this lengthy speech at the winter meeting of the National Association of Attorneys General (NAAG). The speech is focused on what AG Sessions calls a "disturbing rise in violent crime in our nation," and the full speech should be read by any and everyone eager to get a sense for the perspectives and thinking of our new Attorney General. Here are some passages that especially caught my attention:
First, let’s put things in context. Overall, crime rates in the United States remain near historic lows. Murder rates are half of what they were in 1980. The rate of violent crime has fallen by almost half from its peak in the early 1990s. Many neighborhoods that were once in the grip of gangs and drugs and violence are now vibrant places, where kids can play in the park and parents can enjoy a walk after sunset without fear. There is no doubt that in the past four decades — under leadership from both political parties, and thanks above all to the work of prosecutors and good police using science and professional training — we have won great victories against crime in America. Hundreds of thousands of Americans are alive today as a result.
But in the last two years, we’ve seen clear warning signs — like the first gusts of wind before a summer storm — that this progress is now at risk. The latest FBI official data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 11 percent — the largest increase since 1968. The rape rate increased by over 4 percent, and the aggravated assault rate rose by nearly 4 percent.
If this was a one-year spike, we might not worry too much. But the preliminary data for the first half of 2016 confirmed these trends. The number of violent crimes in the first half of last year was more than 5 percent higher than the same period in 2015. The number of murders was also up 5 percent over the same period the year before, and aggravated assaults rose as well.
Just last week, the Wall Street Journal reported that since 2014, the murder rate in 27 of our country’s 35 largest cities has gone up. Homicide rates in Chicago, Baltimore, Milwaukee and Memphis have returned to levels not seen in two decades. Last year, Chicago had more than 4,000 shooting victims and 762 murders, and Baltimore’s murder rate was its second-highest ever.
These numbers should trouble all of us. My worry is that this is not a “blip” or an anomaly, but the start of a dangerous new trend that could reverse the hard-won gains of the past four decades — gains that made America a safer and more prosperous place....
While this spike in violent crime is not happening in every neighborhood or city, the trends should concern all of us. It is a basic civil right to be safe in your home and your neighborhood. We are diminished as a nation when any of our citizens fears for their life when they leave their home; or when terrified parents put their children to sleep in bathtubs to keep them safe from stray bullets; or when entire neighborhoods are at the mercy of drugs dealers, gangs and other violent criminals.
So we need to act decisively at all levels — federal, state and local — to reverse this rise in violent crime and keep our citizens safe. This will be a top priority of the Department of Justice during my time as Attorney General.
We know the first step in fixing something is recognizing you have a problem. For anyone who still doubts that today’s rise in violent crime is real and significant, I’ve done my best here to make that case. And I’m not alone, because police chiefs and sheriffs and mayors across our country are saying the same thing.
Once we recognize the problem, we need to examine the causes and take action. It’s still early, but people with long experience in law enforcement and crime research are beginning to draw some conclusions.
We know that our nation is in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014. Meanwhile, illegal drugs flood across our southern border and into cities and towns across our country, bringing violence, addiction and misery. In particular, we’ve seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs. As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.
In recent years, we’ve also seen a significant shift in the priority given to prosecuting gun and drug offenders at the federal level. While numbers don’t tell the whole story, I still find the following statistics troubling: at the end of 2015 there were more than 7 percent fewer federal gun prosecutions than five years before. In that same five-year period, federal drug prosecutions declined by 18 percent.
Under my leadership at the Department of Justice, this trend will end. Our agents and prosecutors will prioritize cases against the most violent offenders, and remove them from our streets so they can no longer do us harm.
We’ve also heard from law enforcement leaders, including the FBI Director and many police chiefs, that something is changing in policing. They tell us that in this age of viral videos and targeted killings of police, many of our men and women in law enforcement are becoming more cautious. They’re more reluctant to get out of their squad cars and do the hard but necessary work of up-close policing that builds trust and prevents violent crime.
This is a terrible place to be, because we know that tough and effective law enforcement can make a real difference. It can reduce crime and save lives. We’ve seen it happen in our country over the past four decades — and many of you in this room have been part of this noble work.
The immense social costs of crime are indisputable. Yes, incarceration is painful for the families of inmates, and every conviction represents a failure on multiple levels of society. But the costs of rising crime are even more severe. Drug crimes and violent felonies change the lives of victims forever. Neighborhoods hit by rising crime suffer deep economic harm. And if more young men choose to commit crimes because jail time is less daunting than before, that means they are forgoing more hopeful courses for their lives and their communities. In the midst of a terrible heroin epidemic and a rise in violent crime, we should not roll back the tools law enforcement has to go after federal drug trafficking and firearms felons, or release thousands more.
The federal government has a key role to play in addressing this crisis. I pledge that under my leadership at the Department of Justice, we will systematically prosecute criminals who use guns in committing crimes. We will work to take down drug trafficking cartels and dismantle gangs. And we will enforce our immigration laws and prosecute those who repeatedly violate our borders.
I also pledge to listen to the stories and concerns of those who are most affected by this rise in violent crime. Over the coming months I plan to travel around the country, from border towns to big cities, to talk with and learn from our law enforcement partners, crime victims, community leaders and others.
Earlier this month, the President also gave us clear direction. He signed three executive orders aimed at reducing crime and restoring public safety, protecting our law enforcement personnel, and dismantling the transnational cartels that are bringing drugs and violence into our neighborhoods.
To carry out the first of those orders, today I’m announcing the formation of a Department of Justice Task Force on Crime Reduction and Public Safety.
The Deputy Attorney General will chair the task force, which will include crime reduction experts throughout the Department of Justice, including the heads of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA) and the U.S. Marshals Service. The task force will evaluate everything we are doing. It will look at deficiencies in our current laws that have made them less effective in reducing crime, and propose new legislation. It will make sure we’re collecting good crime data, and think of ways to improve that data so we can all better understand crime trends. We will insist that every agent and prosecutor is deployed effectively, fully supported and highly productive. Finally, the task force will consult with our partners in law enforcement at all levels, as well as law enforcement organizations, victims’ groups and community groups....
Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors. Our officers, deputies and troopers believe the political leadership of this country abandoned them. Their morale has suffered. And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before. To confront the challenge of rising crime, we must rely heavily on local law enforcement to lead the way — and they must know they have our steadfast support.
For the federal government, that means this: rather than dictating to local police how to do their jobs — or spending scarce federal resources to sue them in court — we should use our money, research and expertise to help them figure out what is happening and determine the best ways to fight crime. We should strengthen partnerships between federal and state and local officers. And we should encourage proactive policing that ensures our police and citizens are communicating and working well together.
The new challenge of violent crime in our nation is real — and the task that lies before us is clear. As President Reagan used to say, there are no easy answers, but there are simple ones; we only need the courage to do what is right. We need to resist the temptation to ignore or downplay this crisis and instead tackle it head-on, to ensure justice and safety for all Americans. We need to enforce our laws and put bad men behind bars. And we need to support the brave men and women of law enforcement as they work day and night to protect us.
The title of this post is the title of this notable new paper about the Supreme Court's Eighth Amendment jurisprudence authored by William Berry III and now available via SSRN. Here is the abstract:
Three Eighth Amendment decisions — Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp — have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States. What links these cases is the same fundamental analytical misstep — the decision to ignore core constitutional principles and instead defer to state punishment practices. The confusion arises from the text of the Eighth Amendment where the Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices. This is a classical analytical mistake — while the Amendment might prohibit rare punishments, it does not make the corollary true — that all commonly used punishments must be constitutional.
This “unusual deference” to state punishment practices in light of this misconstruction of the text has opened the door to a proliferation of punishments that are disproportionate, arbitrary, and discriminatory. As such, this article argues for a restoration of the Eighth Amendment from its present impotence by reframing the concept of unusualness in terms of the Court’s stated Eighth Amendment values and unlinking it from its deferential subservience to state legislative schemes.
Part I of the article explains the genesis of the Court’s unusual deference. Part II of the article explores the manifestations of unusual deference, examining the flaws in the evolving standards of decency, differentness deference, and three most far-reaching examples of unusual deference — Harmelin, Pulley, and McCleskey. Finally, the article concludes in Part III by reimagining an Eighth Amendment free from the error of unusual deference and demonstrating how such an approach could begin to remedy the problem of mass incarceration.
February 28, 2017 in Examples of "over-punishment", Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
What are we likely to hear (or hoping to hear) from Prez Trump tonight about crime and punishment?
Prez Trump is slated to give his first speech to Congress tonight, and this Politico piece reports on some of the advance buzz coming from the White House about the tone and content of the speech. Here are brief excerpts from the report that might interest sentencing fans:
President Donald Trump’s highly-anticipated first address to Congress on Tuesday will detail an “optimistic vision” for the nation that vows to push a “bold agenda” on tax and regulatory overhauls, reforms in the workplace and a promise to “sav[e] American families from the disaster of Obamacare.”
That’s according to a list of 11 key bullet points outlining Trump’s speech from the White House that was obtained by POLITICO in advance of the address. In it, Trump will also paint his agenda with broad, unifying tones, saying he will “invite Americans of all backgrounds to come together in the service of a stronger, brighter future for our nation.”
“All Americans share a desire for safe communities for themselves and their families,” reads one of the points....
Here is the outline of Trump’s address, distributed by the White House:...
• In Tuesday night’s speech, he will lay out an optimistic vision for the country that crosses the traditional lines of party, race and socioeconomic status. It will invite Americans of all backgrounds to come together in the service of a stronger, brighter future for our nation.
• All Americans share a desire for safe communities for themselves and their families....
• It will be a speech addressed to ALL Americans AS Americans — not to a coalition of special interests and minor issues.
• Americans can expect a speech that is grounded firmly in solving real problems for real people. How can we make sure that every American who needs a good job can get one? How can we get kids who are trapped in failing schools into a better school? How we can keep gangs and drugs and violent crime out of their neighborhoods?
• The President will reach out to Americans living in the poorest and most vulnerable communities, and let them know that help is on the way.
Based on Prez Trump's prior speeches, I am expecting mostly generalities rather than many specifics on the topics of crime and punishment. But the tone and nature of generalities here could still provide addition insight into the likely direction and priorities for the administration of the federal criminal justice in the Trump era.
Monday, February 27, 2017
"How Trump's Twitter use could help bring down NC sex offender law"
The title of this post is the catchy headline of this news article providing a summary of today's Supreme Court oral argument in Packingham v. North Carolina, which involves a First Amendment challenge to a North Carolina law a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites. Here are excerpts from the press account:
A Supreme Court justice pointed to President Trump's use of Twitter during arguments in a challenge to a North Carolina law that forbids registered sex offenders from using social media.
The law, Justice Elena Kagan said, makes it illegal for a group of people to communicate with the president using his favored form of communication. "This has become a crucially important channel of communication," Kagan said.
The justices heard oral arguments Monday in Packingham v. North Carolina. Lester Packingham is a registered sex offender who posted a statement on Facebook celebrating the dismissal of a traffic ticket. Police in Durham, N.C., indicted him for breaking the state's 2008 law that bans sex offenders from using social media that allows children to be members, including Facebook, Twitter and Instagram....
Questions from Kagan and the three other liberal justices suggested they are concerned the law overly restricts free speech. It "forecloses some of the most important channels of communication in our society," Justice Sonia Sotomayor said.
Kagan said in addition to blocking a channel of communication with President Trump, the ban also restricts how sex offenders interact with lawmakers and with religious groups. "These sites have become embedded in our culture as a way to exercise constitutional rights," Kagan said.
Senior Deputy Attorney General Robert Montgomery for North Carolina said sex offenders have alternative ways to express their first amendment rights. The law, he said, is a protection for children against sex offenders who have a high rate of repeat offenses....
Conservatives on the court asked few questions. Chief Justice John Roberts noted the lack of precedent in a case dealing with social media. Justice Samuel Alito said perhaps the law could be narrowed to impact fewer websites.
Amy Howe at SCOTUSblog here has a more fulsome account of the argument under the heading "Justices skeptical about social media restrictions for sex offenders." This full transcript of the SCOTUS oral argument is available here.
Ohio Secretary of State reports that 82 non-citizens have recently cast votes in Ohio
Because I continue to be intrigued by Prez Trump's claim that millions of persons committed a crime by voting illegally in our last election, I find interesting this new story about illegal voting in Ohio headlined "82 non-citizens voted in Ohio, Husted says." Here are the details:
Nearly 400 non-citizens are registered to vote in Ohio — 82 of whom have managed to cast ballots in at least one election since 2015, Secretary of State Jon Husted said Monday. Husted, a Republican and likely candidate for Ohio governor, said his office discovered the 385 registrations from non-citizens on a biennial review of the state's voter database. In total, 7.9 million people were registered to vote in Ohio as of the November election, so the non-citizens make up fewer than 1 in every 20,000 registered voters — far from the widespread voter fraud President Donald Trump has claimed.
Husted is sending law enforcement the names of the 82 non-citizens who voted, so officials can investigate and decide whether to prosecute. His office will send letters to the non-citizens who registered but never voted, requesting they cancel their registration. If they fail to do so, they could ultimately face prosecution. Election fraud can carry a fifth-degree felony charge in Ohio.
As Trump has alleged voter fraud in last year's election, Husted has countered that election fraud isn't a common problem. Still, his office has boasted of its three reviews of the voter rolls to look for non-citizens, the first such reviews conducted by an Ohio secretary of state. “In light of the national discussion about illegal voting it is important to inform our discussions with facts. The fact is voter fraud happens, it is rare and when it happens, we hold people accountable,” Husted said Monday in a statement.
Husted didn't say how which elections the 82 non-citizens had voted in, but even if they all voted in November 2016, they couldn't have swayed Ohio's presidential result, for instance. Eighty-two votes would have amounted to 0.0015 percent of the state's November voters. None of the non-citizens cast a vote in a race that was tied or decided by one vote, Husted said....
The secretary of state's office began the biennial review in 2013. Reviews that year and in 2015 uncovered a total of 44 non-citizens who voted in an election. Of those, eight people have been convicted of breaking the law and two other cases still are pending, spokesman Josh Eck said.
Trump continues to claim — without any evidence — that massive voter fraud marred the 2016 presidential election. On Jan. 23, the new president told congressional leaders between 3 million and 5 million illegal votes caused him to lose the popular vote to Democrat Hillary Clinton. Trump won the election with a convincing victory in the Electoral College, even as Clinton won the popular vote by nearly 2.9 million votes.
If the Ohio story is reasonably representative of the national story (as is often the case with bellwether Ohio), then we might reasonably suspect that there may have been between 3 thousand and 5 thousand illegal votes case in the 2016 election. Whether or not Ohio is representative of other states in this particular context, I am quite pleased to learn that the crime of voter fraud is not rampant in the great state of Ohio.
Senate Judiciary Committee this week to consider two (holdover) nominees to US Sentencing Commission
Sentencing fans in general and federal sentencing fans in particular should be interested in and intrigued by the first agenda item listed for this Wednesday's Executive Business Meeting of the Senate Judiciary Committee: Nominations — Charles R. Breyer, to be a Member of the United States Sentencing Commission (Reappointment); Danny C. Reeves, to be a Member of the United States Sentencing Commission.
After the nominations of Judges Breyer and Reeves were stalled last Congress, outgoing Prez Obama thereafter renominated them for the US Sentencing Commission in January after the new Congress got to work. I have been somewhat pessimistic about the prospects of these holdover nominees getting a hearing and a vote, but perhaps my pessimism was misguided. Of particular important, if Judges Breyer and Reeves receive confirmation from the Senate in short order, they would join Acting USSC Chair Judge Bill Pryor and Commissioner Rachel Barkow to form a quorum on the USSC. (The Commission needs seven voting members to be fully staffed, but four members are sufficient to get stuff done if they all vote together on amendments and other action items.)
Notably, as previously flagged here and now highlighted here at the USSC website, the Commission promulgated some notable and consequential proposed amendments in late 2016 when it still had a nearly full compliment of Commissioners, and those proposed amendments have generated a whole lots of public comment. If the USSC gets two more Commissioners in the coming days, and if the two new folks and the two existing folks agree to move forward with some form of the amendments promulgated late last year, it is possible that the first big tangible federal sentencing development of the "Trump era" involves significant federal sentencing guideline amendments. (But, of course, this is a whole lot of "ifs" and thus nobody should count on anything in this space these days.)
SCOTUS grants cert on (yet another) AEDPA habeas procedure case
It has now been more than two decades since the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and that law has had lots and lots of impacts on federal habeas practice and procedure. One big impact has been lots and lots of technical habeas procedure issues needing SCOTUS attention, and another such issue is now before the Court on the merits after a certiorari grant this morning in Wilson v. Sellers. Here is the SCOTUSblog case page for Wilson v. Sellers, and here is its description of the issue now before the Justices:
Issue: Whether the court's decision in Harrington v. Richter silently abrogates the presumption set forth in Ylst v. Nunnemaker — that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision — as a slim majority of the en banc U.S. Court of Appeals for the 11th Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply.
Will a Justice Gorsuch be a strong SCOTUS voice against over-criminalization?
The question in the title of this post is prompted by this recent National Review commentary authored by C. Jarrett Dieterle and headlined "Gorsuch v. Over-Criminalization." Here are excerpts:
Much of the media attention to date surrounding President Trump’s Supreme Court nominee Neil Gorsuch has centered on the judge’s views of originalism, separation of powers, administrative law, and related topics. Largely overlooked has been an area where Judge Gorsuch’s track record shows a keen awareness of another issue critical to the federal courts: America’s criminal-justice system.
The importance of criminal law is underscored by the breathtaking size of the federal criminal code. Nearly 5,000 federal crimes are on the books, not including the sort of regulatory crimes that likely push the number above 300,000. Worse yet, many criminal laws are written in vague terms that fail to clearly identify what constitutes a crime, leaving Americans in the dark about whether their conduct in many cases is criminal.
In a 2013 lecture for the Federalist Society, Gorsuch confronted the problem of over-criminalization, whereby criminal laws target conduct that is not inherently wrong. Using examples of obscure crimes, such as ripping off a mattress tag, Gorsuch argued that no American can possibly comprehend all the activities prohibited by federal law. “Without written laws, we lack fair notice of the rules we must obey,” as he puts it, adding that fair notice is also lacking when we have “too many written laws.”...
Gorsuch’s expressions of concern about over-criminalization haven’t been confined to speeches. In last year’s Caring Hearts Home Services v. Burwell decision, he had harsh words for a federal agency that forgot its own regulations and misapplied them to a home health-care provider....
Gorsuch has equally strong views on the issue of criminal intent. Under traditional common law, acting with mens rea (a guilty or criminal mind) is a core component of committing a crime. This understanding prevents individuals who inadvertently or accidently do something wrong from being branded criminals....
Gorsuch also has shown willingness to rely on another historical judicial doctrine, the “Rule of Lenity”: Courts that confront ambiguous and vague criminal statutes are urged to interpret those laws in favor of defendants. Gorsuch applied this rule — also a favorite of the late Justice Antonin Scalia — in United States v. Rentz (2015), a case involving a law that imposed heightened penalties on individuals who “use” a gun to commit a violent crime or drug offense.... “Our job is always in the first instance to follow Congress’s directions,” Gorsuch wrote. “But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor.”
Gorsuch’s principle that any “tie” should go to citizens over the government shows his wariness of the vast powers possessed by prosecutors in an over-criminalized society. His tendency to view criminal laws, especially vague ones, with a healthy measure of skepticism should give opponents of over-criminalization a much-needed ally on the nation’s highest court.
Sunday, February 26, 2017
SCOTUS considering cases involving sentencing and collateral consequences in coming days
This coming week the Supreme Court hears arguments in three cases that ought to be over interest to sentencing fans. Here are the basics of the cases in the order they are to be consider in the next two days, with descriptions and links to argument previews via SCOTUSblog:
Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites — including Facebook, YouTube, and nytimes.com — that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act — and therefore constitutes grounds for mandatory removal.
Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.
For all sorts of reasons, Packingham seems likely to get the most attention of this bunch. But Dean could provide to be a sleeper post-Booker case for federal sentencing fans.
Saturday, February 25, 2017
"Conservative Criminal Justice Advocates Try To Change The System — Even In The Trump Era"
The title of this post is the title of this new BuzzFeed News piece which follows up with this subheadline: "Conservative groups pushing for changes to the criminal justice system flooded this year’s conservative confab known as CPAC hoping to convince more people on the right to embrace their cause." Here are excerpts:
Groups, like the American Conservative Union Foundation, an arm of the ACU, which hosts CPAC, hope to convince more people on the political right to embrace the cause as a conservative one by leveraging their recent successes at the state level and reminding lawmakers that it’s an issue with support from multiple conservative groups.
“I do feel that letting politicians know that we are large in numbers and we do support this, and we are present at all of these events, we’re not going to go away; it’s something that’s important and it’s […] a part of the conservative movement,” says Christina Delgado, a spokesperson for the conservative group FreedomWorks....
But some, especially members of the Republican conference in Congress, have expressed concerns over whether reforms — which aim to reduce mass incarceration, rising prison costs, and recidivism rates — represent a soft-on-crime approach to the criminal justice system that could jeopardize public safety. “You do have people that have a bit more of a reactionary tough-on-crime approach that have come up to the booth and talked to us about it,” says Derek Cohen, deputy director of Texas-based Right on Crime, which is also attending CPAC. “But once you start talking to them about, you know, the practicalities of running a criminal justice system, they actually get it very quickly.”...
Delgado says the issue came up in questions during a Thursday event hosted by FreedomWorks that featured Kentucky Gov. Matt Bevin, a Republican who recently signed an order to try to help ex-offenders land jobs after their sentence is up. Delgado says Bevin noted “it’s not about going softer on crime, it’s about just making sure that we’re addressing the more important aspects of crime, and that is the actual danger, the actual criminals, the actual problem.”
Cohen says different types of conservatives — social, fiscal, libertarian — “all have their own reasons for actually being interested in the reform campaign.” For many libertarians, it’s issues such as civil asset forfeiture that make the case for criminal justice reform. For fiscal conservatives, it’s about cutting rising corrections costs.”...
But even with progress happening in Republican-leaning states, it remains to be seen where exactly the new Trump administration will fall on specific federal criminal justice issues. Trump said he wanted to “bring back law and order” during the election campaign, but has not detailed what that will mean.
Though not all are convinced Trump will be swayed by the arguments for criminal justice reform — his attorney general, Jeff Sessions, was a vocal opponent during his time in the Senate — pro-reform groups are hoping state successes appeal to Trump. “As President Trump considers how best to reduce crime and restore public safety, we hope that he can learn from reform champions in states like Oklahoma, Louisiana and Kentucky to chart a new path for America,” Steve Hawkins, president of the Coalition for Public Safety — another CPAC attendee — said in a statement to BuzzFeed News.
Cohen says Right on Crime, which has attended the last five CPACs, has met with members of Congress recently, and that “there seems to be renewed energy” in passing reform legislation. Judiciary Committee members Sens. Dick Durbin and Chuck Grassley have said they plan on re-introducing the bill in the current sessions of Congress. “Now, what shape that reform’s going to be in, I think is a bit premature to say,” Cohen said, “but there definitely is the same appetite if not a greater one.”
Recent prior related post:
February 25, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)
Disconcerting review of modern America highlighting impacts of opioid epidemic and mass criminal enforcement
A helpful reader highlighted to me this extended article from Commentary by Nicholas Eberstadt that covers a lot of (depressing) ground about modern realities in the United States. The full title of the piece highlights its themes: "Our Miserable 21st Century: From work to income to health to social mobility, the year 2000 marked the beginning of what has become a distressing era for the United States." I recommend the full article for lots of reasons (especially for those still struggling to figure out why so many folks were inclined to vote for Prez Trump), and here snippets of passages that struck me as particularly interesting for those concerned with modern opioid problem and broader criminal justice realities:
The opioid epidemic of pain pills and heroin that has been ravaging and shortening lives from coast to coast is a new plague for our new century. The terrifying novelty of this particular drug epidemic, of course, is that it has gone (so to speak) “mainstream” this time, effecting breakout from disadvantaged minority communities to Main Street White America. By 2013, according to a 2015 report by the Drug Enforcement Administration, more Americans died from drug overdoses (largely but not wholly opioid abuse) than from either traffic fatalities or guns. The dimensions of the opioid epidemic in the real America are still not fully appreciated within the bubble, where drug use tends to be more carefully limited and recreational. In Dreamland, his harrowing and magisterial account of modern America’s opioid explosion, the journalist Sam Quinones notes in passing that “in one three-month period” just a few years ago, according to the Ohio Department of Health, “fully 11 percent of all Ohioans were prescribed opiates.” And of course many Americans self-medicate with licit or illicit painkillers without doctors’ orders.
In the fall of 2016, Alan Krueger, former chairman of the President’s Council of Economic Advisers, released a study that further refined the picture of the real existing opioid epidemic in America: According to his work, nearly half of all prime working-age male labor-force dropouts — an army now totaling roughly 7 million men — currently take pain medication on a daily basis....
But how did so many millions of un-working men, whose incomes are limited, manage en masse to afford a constant supply of pain medication? Oxycontin is not cheap. As Dreamland carefully explains, one main mechanism today has been the welfare state: more specifically, Medicaid, Uncle Sam’s means-tested health-benefits program.... In 21st-century America, “dependence on government” has thus come to take on an entirely new meaning....
The drop in crime over the past generation has done great things for the general quality of life in much of America. There is one complication from this drama, however, that inhabitants of the bubble may not be aware of, even though it is all too well known to a great many residents of the real America. This is the extraordinary expansion of what some have termed America’s “criminal class” — the population sentenced to prison or convicted of felony offenses — in recent decades. This trend did not begin in our century, but it has taken on breathtaking enormity since the year 2000.
Most well-informed readers know that the U.S. currently has a higher share of its populace in jail or prison than almost any other country on earth, that Barack Obama and others talk of our criminal-justice process as “mass incarceration,” and know that well over 2 million men were in prison or jail in recent years. But only a tiny fraction of all living Americans ever convicted of a felony is actually incarcerated at this very moment. Quite the contrary: Maybe 90 percent of all sentenced felons today are out of confinement and living more or less among us. The reason: the basic arithmetic of sentencing and incarceration in America today. Correctional release and sentenced community supervision (probation and parole) guarantee a steady annual “flow” of convicted felons back into society to augment the very considerable “stock” of felons and ex-felons already there. And this “stock” is by now truly enormous.
One forthcoming demographic study by Sarah Shannon and five other researchers estimates that the cohort of current and former felons in America very nearly reached 20 million by the year 2010. If its estimates are roughly accurate, and if America’s felon population has continued to grow at more or less the same tempo traced out for the years leading up to 2010, we would expect it to surpass 23 million persons by the end of 2016 at the latest. Very rough calculations might therefore suggest that at this writing, America’s population of non-institutionalized adults with a felony conviction somewhere in their past has almost certainly broken the 20 million mark by the end of 2016. A little more rough arithmetic suggests that about 17 million men in our general population have a felony conviction somewhere in their CV. That works out to one of every eight adult males in America today.
We have to use rough estimates here, rather than precise official numbers, because the government does not collect any data at all on the size or socioeconomic circumstances of this population of 20 million, and never has. Amazing as this may sound and scandalous though it may be, America has, at least to date, effectively banished this huge group—a group roughly twice the total size of our illegal-immigrant population and an adult population larger than that in any state but California—to a near-total and seemingly unending statistical invisibility. Our ex-cons are, so to speak, statistical outcasts who live in a darkness our polity does not care enough to illuminate—beyond the scope or interest of public policy, unless and until they next run afoul of the law.
Thus we cannot describe with any precision or certainty what has become of those who make up our “criminal class” after their (latest) sentencing or release. In the most stylized terms, however, we might guess that their odds in the real America are not all that favorable. And when we consider some of the other trends we have already mentioned — employment, health, addiction, welfare dependence — we can see the emergence of a malign new nationwide undertow, pulling downward against social mobility.
Friday, February 24, 2017
Interesting commentary on Prez Obama's Harvard Law Review article and his criminal justice legacy
As noted in this prior post, last month the Harvard Law Review published this lengthy article authored by Barack Obama titled "The President’s Role in Advancing Criminal Justice Reform." Today I saw at the interesting new site Carceral Complex this pair of follow-up commentaries:
President Obama’s Criminal Justice Legacy: What Went Wrong by Dustin Palmer
The themes of the potent and extended first piece by Dustin Palmer are summarized toward its conclusion:
Law reviews are an excellent place for professorial musings, but the weight of the law (and its failures) is borne by the people. After combing through the legalese, it is important to evaluate actions, not words. Obama’s rhetoric fits comfortably within the narrative of what supporters might have hoped would happen when a young former community organizer and constitutional law professor was elected president. The article itself, and its length, surely attempts to function as a “final word” on his justice reform efforts. Anecdotes about taking clemency participants to lunch or visiting a federal prison paint images of the compassionate, hopeful campaigner.
His actual record – on fundamental, defining aspects of the justice system – is much to the contrary. Failures to reform the War on Drugs, immigration abuse, police militarization, civil asset forfeiture, and the surveillance state left the criminal justice system not “smarter, fairer, and more effective” but undeniably worse. They are a national tragedy, and this failure will define his legacy.
The second shorter piece by Brett Diehl is somewhat less harsh, but not really less damning:
One is left with a sense that the HLR article may represent more of an attempt to construct an individual legacy than to empower actual reform. It was clear by January 2017 that many of the gains in rethinking criminal justice policy of the previous eight years would be rolled back under Trump and his Attorney General Jefferson Beauregard Sessions. Yet Obama’s piece ends, like most of his speeches, with an optimistic declaration that, “I remain hopeful that together, we are moving in the right direction.” Ever an optimist, not once does he mention the incoming administration.
Yes, Obama’s administration made important gains in specific geographic and policy areas. But overall, it failed to shift the paradigm around criminal justice in our nation. In writing to the audience of the HLR, this failure was perpetuated. While it may reach the occasional lay reader, the piece’s formatting, length, and density surely scared off many potential readers (myself included). In this, Obama’s presidency proves to be more words over actions: rhetorical power, fit for us to remember fondly, without bold progress.
Thursday, February 23, 2017
AG Sessions, reversing recent decision made during Obama Administration, signals DOJ return to reliance on private prisons
As reported in this Bloomberg News piece, "U.S. Attorney General Jeff Sessions ordered the Federal Bureau of Prisons to continue using private prisons, rescinding an order by former President Barack Obama’s administration." Here is more context:
Sessions signed the order on Feb. 21, according to a Justice Department statement. The Justice Department last year halted a decade-long experiment of hiring private companies to help manage the soaring prison population. "The memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system," Sessions wrote in a new memo released Thursday but dated Feb. 21. "I direct the Bureau to return to its previous approach."
The move comes as President Donald Trump’s administration has pledged to crack down on illegal immigration and crime. The majority of inmates held at private facilities used by the Justice Department are sentenced “criminal aliens,” according to the Bureau of Prisons. That largely encompasses undocumented immigrants convicted of drug offenses or entering the U.S. without proper documentation.
For a variety of reasons, I do not find this development all that surprising or really all that big of a deal. But I know a lot of reform advocates on the left are especially troubled by the private prison industry, and thus I suspect this move will be another talking point for those concerned about the direction of the federal criminal justice system under the new Administration.
Florida legislators talk of repealing mandatory minimums for nonviolent offenses
As reported in this local article, headlined "In major Tallahassee reversal, mandatory sentences called a waste of taxpayer money," there is a notable movement to repeal some mandatory minimum sentences in the Sunshine State. Here are the details:
Cynthia Powell is serving a 25-year sentence for selling 35 pills for $300 in 2002. Her incarceration at Homestead Correctional Institution costs taxpayers an average of $18,064 per year — or $451,600 by the time she is released in 2023.
The Florida Senate Criminal Justice Committee concluded Tuesday that’s money poorly spent. It voted unanimously for SB 290, which would end minimum mandatory sentences for nonviolent offenses like Powell’s. The measure represents a major shift from the tough-on-crime bills of the last two decades that filled prisons and created what both liberals and conservatives now believe has been a subclass of lifers in jail and a waste of tax money. The “prison diversion bill” would save the state $131 million in avoided costs and put 1,001 fewer people in jail, said Sen. Daryl Rouson, D-St. Petersburg, the bill’s sponsor.
The measure would allow judges to depart from the 118 minimum mandatory sentences in Florida law but excludes drug traffickers. It restores the Florida Sentencing Commission, which existed from 1982 to 1997, but limits its scope to determining the severity ranking that adds points to an offender’s record based on certain offenses. Anyone who commits a violence offense, is not eligible for the court’s leniency.
Reforming Florida’s legacy of harsh sentencing is one of several reforms being pushed by a coalition of liberal and conservative advocates that were passed unanimously by the Senate committee on Tuesday. “We are in an interesting juncture in our society and the Legislature, where Democrats and Republicans in both chambers agree that it’s really time to look at our criminal justice system and start to make some reforms,” said Sen. Randolph Bracy, D-Orlando, chairman of the committee....
Greg Newburn, director of Families Against Mandatory Minimums, a conservative group that supports ending mandatory minimum sentences for nonviolent crimes, said “dozens of states have already made the decision to move in this area.” They include Georgia, Oklahoma and North Carolina. “The results are uniform,” he said. “We get lower crime. We get smaller prison populations. They’ve closed prisons and saved tens of millions of dollars.”
If Powell, the Homestead inmate, had sold two fewer pills in 2002, she would have gotten a 15-year sentence, he said. If she sold them today, it would be a seven-year sentence. Instead, she won’t be released until 2023. “There are many other people in similar situations who simply don’t need to be there,” he said. “It’s a waste of money. We receive no public safety benefit whatsoever.”
His organization supports full repeal of mandatory minimum drug laws — as states such as Michigan, New York and Delaware have done — but he considers the piecemeal progress proposed by the Senate “a good reform.”
Jim DeBeaugrine of the Center for Advanced Justice, a sentencing reform advocacy group, warned the committee that giving drug offenders shorter sentences will only keep them out of prison if they receive treatment for substance abuse and mental health issues. “If you try to do it on the cheap, the results of this outcome are compromised,” he said. “The only way you will ever end the issue of mass incarceration is you’ve got to stop putting so many people in prison.”
Wednesday, February 22, 2017
Buck's notable dis of state finality interests in "flawed" capital sentence
Though there are a number of interesting procedural and substantive elements to the Supreme Court's ruling today in Buck v. Davis reversing a Texas death sentence (basics here), I am especially intrigued by the short shrift given by the Chief Justice's majority opinion to the state's claimed interest in finality. (Regular readers know I can get fixated on finality and have written at length about why I think convictions and sentences ought to be treated differently for finality purposes.) Here is all that Chief Justice Roberts writing for the Court had to say about finality (with my emphasis added):
In opposition, the State reminds us of the importance of preserving the finality of judgments. Brief for Respondent 34. But the “whole purpose” of Rule 60(b) “is to make an exception to finality.” Gonzalez, 545 U.S., at 529. And in this case, the State’s interest in finality deserves little weight. When Texas recognized that the infusion of race into proceedings similar to Saldano’s warranted confession of error, it effectively acknowledged that the people of Texas lack an interest in enforcing a capital sentence obtained on so flawed a basis. In concluding that the value of finality does not demand that we leave the District Court’s judgment in place, we do no more than acknowledge what Texas itself recognized 17 years ago.
In his dissent, Justice Thomas says the majority opinion "belittles Texas’ claimed interest in finality," and I think that is a fair characterization of the passage above. I am also inclined to turn this belittling into a broader and enduring "Buck finality principle": a state has little or no valid interest in preserving the finality of a (capital) sentence that is obviously "flawed" in some significant way. Though I do not expect this Buck dis of state finality interests to significantly impact finality jurisprudence, I do expect to cite this Buck the next time I need to respond to any claims that flawed sentences must be preserved in the name of finality.
"The Constitutional Law of Incarceration, Reconfigured"
The title of this post is the title of this notable new paper authored by Margo Schlanger now available via SSRN. Here is the abstract:
As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well.
In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases.
But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.
Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence
The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:
A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.
Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....
Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....
Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....
[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.
Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:
Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it. But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here. The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.