Monday, June 13, 2016

SCOTUS finds no Sixth Amendment problems with reliance on uncounseled tribal conviction

The Supreme Court gave federal prosecutors a unanimous win this morning through its opinion in US v. Bryant, No.15-420 (S. Ct. June 13, 2016) (available here). The opinion by Justice Ginsburg for the Court gets started this way:

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders.  Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.”  See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings.

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.  Scott v. Illinois, 440 U. S. 367, 373–374 (1979).  But the Sixth Amendment does not apply to tribal-court proceedings.  See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337 (2008).  The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U. S. C. §1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed.  §1302(c)(2).  Bryant’s tribal-court convictions, it is undisputed, were valid when entered.  This case presents the question whether those convictions, though uncounseled, rank as predicate offenses within the compass of §117(a).  Our answer is yes.  Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a §117(a) prosecution.  That proceeding generates no Sixth Amendment defect where none previously existed.

June 13, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, June 12, 2016

After most deadly mass shooting in US history, sadness and frustration and realism

The tragic news today from Orlando, which is already being identified as the worst mass shooting in US history, is not a sentencing story because the shooter apparently was killed by the police while on the scene of his horrible crimes.  But, I feel compelled to blog about this horrific crime in order to express my deep sadness.  I also have to express my frustration that, no matter what I or others have to say, the circumstances of this horrific crime will likely engender political and social discussions that may just deepen divisions among Americans who cannot help but want to "do something" and yet rightly struggle to figure out just what can be done about man's inhumanity to man.

June 12, 2016 in Offender Characteristics, Offense Characteristics | Permalink | Comments (12)

Now a murderer, Oscar Pistorius facing resentencing

Tdy_rossen_oscar_150819.nbcnews-ux-1080-600This new AP article, headlined "A Glance at Oscar Pistorius's ReSentencing, Now for Murder," details the high-profile resentencing scheduled for this coming week in South Africa. Here are excerpts:

Oscar Pistorius is going back to jail. The only question now is for how long? It could be 15 years. The double­amputee Olympic runner's sentencing hearing opens Monday after he was convicted of murder by South Africa's Supreme Court of Appeal for shooting girlfriend Reeva Steenkamp.

It'll be the second time Pistorius has been sentenced for the killing following an appeal by prosecutors. The three-­year legal saga that began with the fatal gunshots in the pre­dawn hours of Valentine's Day 2013 now appears to be near its end....

Pistorius was initially convicted of the lesser charge of culpable homicide, or manslaughter, at his 2014 trial for shooting Steenkamp through a closed toilet door in his home. He testified he mistook the model and reality TV celebrity for a nighttime intruder hiding in a bathroom, and shot with his 9mm pistol in self­defense fearing an attack. The trial judge accepted part of Pistorius' story, and he was given a five­year jail sentence based on the judge's ruling that he acted recklessly, but didn't mean to kill. After serving a year in jail, Pistorius was released on parole in line with South African procedure and has been living under house arrest at his uncle's mansion since October last year.

But following Pistorius' manslaughter verdict, prosecutors appealed to the Supreme Court, saying that the former star athlete, a multiple Paralympic champion, should have been found guilty of murder. They argued that Pistorius intended to kill someone — even if he didn't know it was Steenkamp in the toilet cubicle — when he shot four times through the door with no justification.

In December, a panel of Supreme Court judges agreed with prosecutors, overturned Pistorius' manslaughter conviction, and raised it to a more serious murder conviction. Pistorius must now be sentenced for murder. Supreme Court Justice Lorimer Leach said: "The accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent."...

15 years in prison [is] the minimum sentence for murder in South Africa, which no longer has the death penalty. Legal experts say a judge can reduce that sentence in some circumstances, and that Pistorius' disability and the fact that he is a first-­time offender could be taken into account. He has also already served a year in prison. Pistorius will return to the same courthouse in Pretoria where his dramatic seven­month murder trial played out in 2014 to be sentenced again.

The hearing has been scheduled to last a week and Pistorius' punishment will again be decided by Judge Thokozile Masipa, who acquitted him of murder at his trial but had her decision overturned by the Supreme Court....

After his conviction was changed to murder by the Supreme Court last year, Pistorius appealed to South Africa's highest court, the Constitutional Court, to review his case. The Constitutional Court dismissed that appeal in March and Pistorius now has no chance of escaping the murder conviction.

Prior related posts:

June 12, 2016 in Celebrity sentencings, Sentencing around the world | Permalink | Comments (0)

Friday, June 10, 2016

Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on

This week's entry in the always amusing and informative Relist Watch SCOTUSblog posting by John Elwood has flagged two cases of note for sentencing fans, especially for those especially interested in the continued fall-out from the Supreme Court's big Johnson vagueness ruling last year.  I will reprint, with all the humor and links, Elwood's coverage of these cases:

Our next new relist is Jones v. United States, 15-8629. No, not that one.  Not that one either.  Or that.  Now you’re trying my patience.  Can we just agree it’s a pretty common case caption?  And indeed, this case has been up to the Court once before.  The petitioner in Jones was sentenced to about twenty-one years’ imprisonment under the residual clause of the U.S. Sentencing Guidelines’ career-offender provision.  During its last trip to One First Street, the Court granted cert., vacated the judgment, and remanded (“GVR”) in light of Johnson v. United States, which declared an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) unconstitutionally vague and therefore void.  On remand, the Third Circuit determined that Johnson was inapplicable because Jones’s career-offender designation relied not on the residual clause, but on its “Application Note,” which specifically lists robbery as a predicate offense.  During Jones’s stay in the Third Circuit, the Court held in Welch v. United States that Johnson announced a new substantive constitutional rule that applies retroactively to ACCA cases on collateral review.  Jones poses three questions: (1) whether Johnson applies retroactively to collateral cases challenging the residual clause of the Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the Guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.”

Jones, unsurprisingly, is not one of a kind: It has a doppelganger, Beckles v. United States, 15-8544, which is nearly identical right down to the GVR and raises the same three questions (except that Beckles’s third question presented involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions assert urgency because of the Antiterrorism and Effective Death Penalty Act’s one-year bar: “Prompt resolution of these issues is required because the one-year statute of limitations governing collateral Johnson claims will expire on June 26, 2016,” the petitioners say, adding that “a per curiam opinion on these issues without full briefing or oral argument may be appropriate.” The government opposes cert. because, among other things, the Sentencing Commission has adopted a Guidelines amendment, likely taking effect on August 1, 2016, that deletes the residual clause from the guideline in light of the Court’s concerns in Johnson: “The question of Johnson’s application to the current career offender guideline is therefore likely to be of no continuing importance.”   Both cases got something of a late boost when the Fourth Circuit deepened the split on Wednesday....

 

15-8629

Issue: (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.

(relisted after the June 2 Conference)

 

15-8544

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

(relisted after the June 2 Conference)

June 10, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this notable data-heavy new report from The Sentencing Project.  Here is part of the reports "Overview" section:

Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism.  As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%.  Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.

At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions.  The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance.  Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement.  These consequences set individuals back by imposing new punishments after prison.  Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects.  Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling.  An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.

This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.

June 10, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Split Seventh Circuit panel debates import and impact of jury finding of drug quantity rejected by the judge at sentencing

A helpful reader altered me to an interesting Seventh Circuit ruling today in US v. Saunders, No. 13-3910 (7th Cir. June 10, 2016) (available here). These passages from the partial dissent authored by Judge Manion provides a reasonable look into why this split panel's sentencing work is blog-worthy:

The jury in this case found beyond a reasonable doubt that the drug amount was between 100 grams and 1 kilogram.  This necessarily implies that the jury found the offense did not involve 3.69 kilograms, but at sentencing, the district court found a 3.69-kilogram amount.  These findings are irreconcilable.  By its finding, the district court overrode the jury’s decision. The Sixth Amendment does not allow this.  I dissent from this aspect of the court’s decision, but join in all other aspects....

A straightforward reading of the jury-verdict form does not allow this court to find an “effective acquittal.”  The jury does not — in a single sentence, passing judgment on one count — actually convict and effectively acquit.  Here, the jury convicted Saunders and Bounds of a capped drug quantity, and its verdict should stand....

In its ruling today, the court affirms the district court’s application of Watts to this case.  It should not.  Watts stands for the simple principle that a sentencing court may consider conduct underlying an acquitted charge if that underlying conduct is proven by a preponderance of the evidence. Watts, 519 U.S. at 157.  Watts is therefore factually and legally distinguishable from this case. Instead of an acquittal, this case features an affirmative jury finding of fact.  An acquittal is a legal conclusion, “not a finding of any fact,” and it “can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.” See id. at 155 (internal quotation marks omitted)....

As the Supreme Court observed [in Watts], “That [acquittal] verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.” Id. at 157 (emphasis in original).  In contrast, the two results in this case cannot square: the defendants cannot have (1) possessed less than 1 kilogram and (2) also possessed 3.69 kilograms. By flatly contradicting the jury’s express factual finding, the sentencing judge in this case violated the Sixth Amendment rights of Saunders and Bounds.  And if the jury system is to mean anything, this outcome is a problem.

June 10, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Should I really be too troubled by a Texas life sentence (with parole eligibility in 30 years) for nine-time drunk driver?

The question in the title of this post is prompted by this New York Times piece headlined "He Had 8 Convictions for Driving Drunk. On His 9th, He Got Life." Here are the details:

The first eight convictions for driving while intoxicated didn’t stop Donald Middleton of Houston from sliding behind the wheel and getting his ninth conviction. This time, the judge had had enough.

When Mr. Middleton, 56, faced Judge Kathleen Hamilton of the 359th District Court in Texas on Tuesday, she sentenced him to life in prison. He won’t be eligible for parole for 30 years.

Such a harsh sentence is uncommon for drunken-driving convictions, which often lead to temporary license suspensions and prison stays that allow repeat offenders to return to the road. In Mr. Middleton’s case, he still had a valid driver’s license, despite the eight convictions. Mr. Middleton’s case raises the question: How many times does someone have to be caught driving drunk before he or she can no longer legally drive?

He was arrested in May 2015 after he turned into the wrong lane and collided head-on with a vehicle driven by a 16-year-old who was on the way home from work at a grocery store. Mr. Middleton ran into a nearby convenience store and repeatedly asked a clerk to hide him, prosecutors said. He had a blood-alcohol level of 0.184, more than twice the legal limit, 0.08, according to Justin Fowles, a Montgomery County assistant district attorney. Mr. Middleton pleaded guilty to driving while intoxicated last May and has been in jail since.

The teenager, Joshua Hayden, was not injured, but his father, Rowdy Hayden, said in a telephone interview that he appreciated the judge’s harsh sentence. “It angers me, as a father, that this individual skirted the justice system eight times and was still out here endangering our citizens on the roadway by drinking and driving,” said Mr. Hayden, who is a police constable in Montgomery County. “His proven track record showed he was going to continue to drink and drive. And who knows, the next time he may have killed someone.”

Mr. Middleton had four previous stints in prison for driving while intoxicated. His eighth conviction, in 2008, involved rear-ending a car with several people inside; they sustained minor injuries. Mr. Middleton fell out of the car and was unable to stand, Mr. Fowles said.

The conviction from that episode led to a 13-year prison sentence, of which he served four years. After the most recent conviction, he was classified as a habitual offender, which enabled the longer sentence. “He had proven to us that he can’t be trusted with his own freedom, that he’s a danger to our community and that the best thing for everyone else’s safety on the roadways is for him to never be able to drive again,” Mr. Fowles said in a telephone interview.

Rules for stopping habitual drunken drivers vary wildly by state, but repeat offenders tend to get multiple extra chances. The National Highway Traffic Safety Administration estimates that one in three people arrested on drunken-driving charges are repeat offenders. In Minnesota, a 61-year-old man was released from prison last year after a five-year stay for his 27th conviction related to drunken driving. In Pennsylvania, one man was arrested five times in less than a year, but never lost his driver’s license or served more than 10 days in jail....

J. T. Griffin, the chief government affairs officer for Mothers Against Drunk Driving, said the organization had focused on promoting ignition interlock devices, which require anyone convicted of drunken driving to pass a breathalyzer test before starting a car. Twenty-seven states have laws requiring them, including New York, he said. Suspending licenses can be ineffective when many people continue to drive without a valid license, he said.

“We believe in going after D.U.I. the first time, not waiting for the second or third or fourth offense,” Mr. Griffin said. “The first time is unacceptable. And nine times is just ridiculous.”

June 10, 2016 in Offense Characteristics, Scope of Imprisonment | Permalink | Comments (7)

Thursday, June 9, 2016

"The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"

The title of this post is the subheadline of this notable new Slate commentary authored by Mark Joseph Stern run under the main headline "Justice for None." The piece highlights that we are already now at the stage of seeing some backlash to the backlash over the lenient sentence given to Brock Turner. Here are excerpts:

Brock Turner is an odious criminal who committed a heinous act and deserves to go to prison for much longer than his six-month sentence requires. His trial confirmed that both racism and sexism continue to plague America’s criminal justice system, especially where rape is involved. Yet in their rush to condemn Turner’s sentence, far too many liberals have abandoned what were, not so long ago, fundamental principles of progressivism.  This willingness to toss due process out the window in sexual assault cases is, unfortunately, indicative of a broader inconsistency that plagues the American left....

[T]he movement to remove Persky from the bench will not, and cannot, be limited to this one case. It would set a clear precedent that liberals should feel empowered to knock judges off the bench when they really disapprove of their rulings.  That is an extraordinarily dangerous mindset — one conservatives have exploited for decades. In 1986, Republicans spearheaded a successful campaign to oust three justices from the California Supreme Court over their judicial opposition to capital punishment.  The overtly partisan effort politicized the court and temporarily shattered the state judiciary’s independence. More recently, anti-gay activists ousted three judges from the Iowa Supreme Court over their votes affirming same-sex couples’ right to wed.

American liberals have long looked upon these efforts as antithetical to the judiciary’s responsibility to remain above politics and faithfulness to the law.  Is that belief suspended when the judge issued a sexist ruling rather than a progressive one?  Even worse, Persky has received anonymous threats from social justice advocates outraged by his ruling. These hecklers may believe their cause to be noble, but they are taking a page straight from Donald Trump’s playbook — not a good look for activists hoping to combat everything Trump stands for.

Then there is the widely lauded victim impact statement Turner’s victim read during the sentencing hearing.  I am glad she wrote this extraordinarily powerful letter and glad so many millions have read and been moved by it.  But it had absolutely no place in the courtroom. Victim impact statements were once a liberal bête noire, and rightly so, because they seriously undermine the defendant’s due process rights.  In a criminal sentencing hearing, the judge (or jury) should consider only the facts of the case at hand in determining the defendant’s culpability.  Victim impact statements introduce a massive amount of emotion into the proceedings, allowing the judge or jury to be swayed by emotional response rather than logical reflection.  That, in turn, shifts the focus away from the defendant and toward the victim while injecting arbitrariness into the sentencing process.  The defendant’s punishment may well hinge on how emotionally compelling the victim can make his or her statement....

Liberals’ blasé attitude toward judicial impeachment and victim impact statements in the Turner case, then, must be viewed as part of a larger trend: the willingness among a certain faction of the American left to jettison progressive principles in a good-hearted but profoundly misguided effort to stop sexual violence.  That is a noble cause, but it cannot justify unraveling the most cherished safeguards of our criminal justice system.  What Brock Turner did was sickening; what he received as punishment is far less than what he deserved.  But eroding due process and threatening judicial independence is not the way to bring his victim justice.

Prior related posts:

June 9, 2016 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5)

Seventh Circuit affirms above-guideline child porn sentence given to former Subway pitchman Jared Fogle

A panel of the Seventh Circuit made quick work of the appeal brought by former Subway pitchman Jared Fogle. Readers may recall Fogle received a federal sentence after pleading guilty to various child porn offense of 15 years and eight months, and on appeal Fogle asserted his sentence was unreasonable based on various alleged procedural and substantive errors. Oral argument on Fogle's appeal too place just a few weeks ago, and today this panel opinion affirmed the sentence given to Fogle and winds up this way:

Fogle attacks the district court’s overall reasoning in imposing his sentence. He characterizes the district court’s discussion as “puzzling” and claims that the various factors that the court relied upon cannot reasonably support an enhanced sentence.  For instance, he alleges that an enhanced sentence is not warranted because he only engaged in “[o]ne single act” of distribution. He tries to downplay this conduct by claiming that it was a mere “technical” violation of the statute because he only showed the video to “one individual with whom [he] was then involved with romantically and it occurred in the confines of a locked hotel room.”

Fogle’s arguments regarding substantive error are unpersuasive in light of the deference “we must give … to the district court’s determination that the § 3553(a) factors, taken as a whole, justified the extent of the variance” from the guidelines range.  Scott, 555 F.3d at 610.  The district court provided a thorough explanation for its imposition of an above-guidelines sentence, which is all that was required.  And contrary to Fogle’s allegation of double-counting, the district court properly invoked the § 3553(a) factors and explained why the aggravated nature and circumstances of Fogle’s offenses warranted a higher sentence for both counts.  Specifically, the district court noted that Fogle knew that his employee was secretly videotaping minors yet never reported this to law enforcement, as well as the fact that Fogle repeatedly acted on his attraction to minors rather than limiting himself to fantasies.  The court also discussed how Fogle’s lack of a difficult upbringing failed to mitigate the circumstances of his conviction, and how his celebrity status could be viewed as both a mitigating and aggravating factor.

In light of the district court’s sound exercise of discretion under the disturbing facts of this case, we uphold the aboveguidelines sentence as substantively reasonable.

Prior related posts:

June 9, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

US Sentencing Commission provides notice of proposed 2017 priorities and requests comment

The US Sentencing Commission has now posted here a "notice to identify tentative priorities for the amendment cycle ending May 1, 2017."  The notice lists a dozen tentative priorities, and here are what I consider highlight from the list:

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.

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

(3) Continuation of its study of approaches to encourage use of alternatives to incarceration, including possible consideration of amending the Sentencing Table in Chapter 5, Part A to consolidate and/or expand Zones A, B, and C, and any other relevant provisions in the Guidelines Manual.

(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....

(8) Study of the operation of Chapter Four, Part A of the Guidelines Manual, including (A) the feasibility and appropriateness of using the amount of time served by an offender, as opposed to the sentence imposed, for purposes of calculating criminal history under Chapter Four; and (B) the treatment of revocation sentences under §4A1.2(k)....

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

The Commission hereby gives notice that it is seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2017. To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority. [Public comment should be received by the Commission on or before July 25, 2016.]

June 9, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

SCOTUS overturns Pennsylvania death sentence because involved DA who became state justice did not recuse

A death row defendant in the Keystone State got a key win on a judicial bias claim from SCOTUS this morning in Williams v. Pennsylvania, No. 15-5040 (S. Ct. June 9, 2016) (available here). Justice Kennedy authored the opinion for the Court, while Chief Justice Roberts dissented in an opinion Justice Alito joined and Justice Thomas authored his own dissenting opinion. Here is how the Court's opinion gets started: 

In this case, the Supreme Court of Pennsylvania vacated the decision of a postconviction court, which had granted relief to a prisoner convicted of first-degree murder and sentenced to death.  One of the justices on the State Supreme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case.  The justice in question denied the prisoner’s motion for recusal and participated in the decision to deny relief.  The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment.

This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “‘is too high to be constitutionally tolerable.’” Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).  Applying this standard, the Court concludes that due process compelled the justice’s recusal.

June 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Win for defendant (and a loss for Puerto Rico, I suppose) in SCOTUS Double Jeopardy case

An interesting array of opinions resulted today from the Supreme Court in an interesting case coming from Puerto Rico addressing Double Jeopardy protections. Justice Kagan wrote the Court's opinion in Puerto Rico v. Sanchez Valle, No. 15-108 (S. Ct. June 9, 2016) (available here); Justices Ginsburg and Thomas both authored concurring opinions, and Justice Breyer (joined by Justice Sotomayor) authored the chief dissent. Here is how the opinion for the Court gets started:

The Double Jeopardy Clause of the Fifth Amendment prohibits more than one prosecution for the “same offence.”  But under what is known as the dual-sovereignty doctrine, a single act gives rise to distinct offenses—and thus may subject a person to successive prosecutions — if it violates the laws of separate sovereigns.  To determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes, this Court asks a narrow, historically focused question.  The inquiry does not turn, as the term “sovereignty” sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course.  Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins — or, said conversely, whether those powers derive from the same “ultimate source.” United States v. Wheeler, 435 U.S. 313, 320 (1978).

In this case, we must decide if, under that test, Puerto Rico and the United States may successively prosecute a single defendant for the same criminal conduct.  We hold they may not, because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.

Justice Breyer's dissent starts by explaing that his "reasons for disagreeing with the majority are in part conceptual and in part historical."

June 9, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (21)

Unpacking the (never-simplistic and never-certain) stories of state crimes and incarceration levels

This new Atlantic story, headlined "Crime Is Down, Sort Of: New stats on U.S. imprisonment rates suggest a complicated future for criminal-justice reform," provides a usefully nuanced account of this new Brennen Center report titled simply "Update: Changes in State Imprisonment Rates." Here first is what the Brennan Center sets up its report: 

Today, there are 2.3 million people in the nation’s prisons and jails — a 500 percent increase over the last forty years. With almost one in 100 American adults behind bars, our incarceration rate is the world’s highest. This fact sheet provides an update to findings on state imprisonment trends originally outlined in The Reverse Mass Incarceration Act. It analyzes data from all 50 states on imprisonment and crime from 2006 (as bipartisan criminal justice reforms generally began around 2007) through 2014 (the most recent year of data).

Two overarching findings:

1. Many argue that increased incarceration is necessary to reduce crime.  Yet the data shows the opposite.  Over the last ten years, 27 states have decreased both crime and imprisonment.  Not only is this trend possible, it’s played out in the majority of states. Nationally, imprisonment and crime have fallen together, 7 percent and 23 percent respectively since 2006.  Crime continued its downward trend while incarceration also decreased.

2. In recent years, states in the South have seen some of the largest decreases in imprisonment.  Yet, they also remain the largest incarcerators in the country.  Mississippi reduced imprisonment by 10 percent but still has the nation’s 5th highest incarceration rate.  Texas has reduced imprisonment by 15 percent yet still has the 7th highest imprisonment rate in the country.

And here is a snippet from the Atlantic's discussion of the report:

Many Americans might make a basic mathematical error in looking at the country’s criminal-justice system: They assume more people in jail or prison always equals less crime, and more crime necessarily calls for putting more people behind bars. Both conclusions are wrong. A new report from the Brennan Center for Justice provides some illuminating data on this point.

The report’s most fascinating finding is that imprisonment and overall crime rates were down 7 percent and 23 percent, respectively, from 2006 to 2014. “States will continue to decrease imprisonment slowly; we might perhaps see crime leveling out,” Chettiar said. “Criminologists say we have reached an all-time low in crime. I expect we’ll continue to see low crime and lowered imprisonment rates.”...

In the analysis, high achievers included Rhode Island, New Jersey, Hawaii, Nebraska, Connecticut, California, Colorado, and South Carolina. All saw double-digit drops in their rates of imprisonment per 100,000 residents. That does not necessarily indicate a dramatic drop in the actual number of people behind bars—an overall decrease in the rate at which a state imprisons people can result from many factors, including the release of current inmates, diversion efforts to keep those arrested out of jail, and the reclassification of low-level crimes that may let some offenders bypass custody....

In terms of overall crime, Vermont, Minnesota, Pennsylvania, North Carolina, Illinois, Maryland, and Louisiana reduced their rates most. Each saw a decrease of 30 percent or more in their crime rates per 100,000 residents. States such as New Hampshire, North Dakota, and South Dakota each saw big increases in their in crime rates, all 30 percent or higher.

As policymakers are paying increased attention to the shortcomings of the criminal-justice system and more citizens seem to accept the need for policy changes, these facts suggest reform will look very different in different states—and above all, it will be complicated.

June 9, 2016 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing whether the judicial recall effort in the controversial Standford sexual assault sentencing case is a good idea.  Here is the section's set up:

A California judge sentenced Brock Allen Turner to only six months in jail for raping an unconscious woman after a Stanford University fraternity party, despite her angry, eloquent, courtroom denunciation of the way she and other rape survivors are treated.  In response, a petition was started to hold a recall election to throw him off the bench.

But should judges be subject to recall because of an unpopular sentence or would that impede their independence?

Here are the contributions, with links via the commentary titles:

June 9, 2016 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Wednesday, June 8, 2016

"Salience and the Severity Versus the Certainty of Punishment"

The title of this post is the title of this notable new essay authored by Murat Mungan now available via SSRN. Here is the abstract:

The certainty aversion presumption (CAP) in the economics of law enforcement literature asserts that criminals are more responsive to increases in the certainty rather than the severity of punishment.  In simple economic models, this presumption implies that criminals must be risk-seeking.  Some scholars claim that this and similar anomalous implications are caused by the exclusion of various behavioral considerations in theoretical analyses.

This article investigates whether a model in which criminals over-weigh probabilities attached to more salient outcomes (as in Bordalo et al. (2012) and (2013)) performs better than the simple expected utility theory model in explaining CAP-consistent-behavior.  The analysis reveals that the answer is negative unless the probability of punishment is unreasonably high.  This finding suggests that we should exercise caution in incorporating salience -- a la Bordalo et al.-- in simple law enforcement models.

June 8, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Sixth Circuit on the drug war, immigrant crime, ineffective assistance, jury nullification, Alexander Hamilton and a circuit split all in seven pages

Long-time readers likely realize I do not cover federal circuit court rulings in this space nearly as much as I did in the early days after Blakely and Booker, largely because many of the federal sentencing issues that now occupy circuit have become of late much more settled (or, at times, just much more borring).  But a great little  new Sixth Circuit panel ruling today in Lee v. US, No. 14-5369 (6th Cir. June 8, 2016) (available here), reminded me of why I still make a regular habit of, and can sometime be greatly rewarded by, taking the time to see what the circuit courts are saying in criminal appeals.  As the title of this post highlights, there is a lot of "there there" in the short panel opinion in Lee, and I hope these snippets (with some cites omitted) will encourage everyone to check out the full opinion:

The case against him was very strong.  A government witness was prepared to testify that he had purchased ecstasy from Lee on a number of occasions, dozens of pills were discovered during a lawful search of Lee’s home, and Lee himself admitted not only that he had possessed ecstasy, but also that he had distributed the drug to his friends. In light of this, Lee’s trial attorney advised him to plead guilty in exchange for a lighter sentence.

Here’s the wrinkle: even though he has lived in the United States for decades, Lee, unlike his parents, never became an American citizen, and though he did eventually plead guilty, he did so only after his lawyer assured him that he would not be subject to deportation — “removal,” in the argot of contemporary immigration law.  This advice was wrong: possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable.  Lee understandably does not want to be deported, and he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, contending that he received ineffective assistance of counsel....

[T]he district court’s conclusion that the evidence of guilt was “overwhelming” is not clearly erroneous, and deportation would have followed just as readily from a jury conviction as from a guilty plea. Thus, aside from the off chance of jury nullification or the like, Lee stood to gain nothing from going to trial but more prison time. On the other hand, for those such as Lee who have made this country their home for decades, deportation is a very severe consequence, “the equivalent of banishment or exile,” as the Supreme Court memorably put it.  As a factual matter, we do not doubt Lee’s contention that many defendants in his position, had they received accurate advice from counsel, would have decided to risk a longer prison sentence in order to take their chances at trial, slim though they were.

But would such a decision be “rational”? Several courts, including this circuit, have said “no”: being denied the chance to throw “a Hail Mary” at trial does not by itself amount to prejudice.... Others have reached the opposite conclusion....  We have no ability, of course, as a panel, to change camps. A nd in that sense, this is a straightforward case. In Pilla we held that no rational defendant charged with a deportable offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.   Lee finds himself in precisely this position, and he must therefore lose. But given the growing circuit split (which, as best we can tell, has gone unacknowledged), we think it worthwhile to explain why we are convinced that our approach is the right one and to set out the role that we believe deportation consequences should play in evaluating prejudice under Strickland.

We begin, however, by giving the other side its due. As the Seventh Circuit noted in DeBartolo, strong evidence of guilt does not strip a defendant of his right to a jury trial, nor does it guarantee a guilty verdict.  The second point is especially true for defendants such as Lee, since it is well documented that many jurors are willing to acquit those charged with a first-time, non-violent drug offense, despite evidence of guilt. See id. (quoting Lawrence D. Bobo & Victor Thompson, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment, in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010)).

This possibility, at least according to many of this nation’s founders, is not a defect, but a feature of the jury system.  See, e.g., 2 John Adams, The Works of John Adams 254–55 (1850) (“It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Diary Entry, February 12, 1771)).  Indeed, the unreviewable power of juries to acquit, despite strong evidence of guilt, was perhaps the central reason why the right to a jury trial in criminal cases was enshrined in the Constitution.  See Rachel E. Barkow, Criminal Trials, in The Heritage Guide to the Constitution 340, 340–41 (David F. Forte & Matthew Spalding, eds. 2nd ed. 2014).  For the framers and ratifiers, the memory of how King George III had prevented colonial juries from nullifying unpopular English laws by “expand[ing] the jurisdiction of nonjury courts” was still fresh. Id. at 340.  And one of the grievances listed in the Declaration of Independence was that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.”  Declaration of Independence para. 20 (U.S. 1776).  It is thus not surprising that nearly all commentators active during the time of the founding favored the inclusion in the new Constitution of the right to a jury trial. See, e.g., The Federalist No. 83, at 432–33 (Alexander Hamilton) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001) (“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.”).

June 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Florida Supreme Court grapples with post-Hurst hydra and state's new capital punishment procedures

Download (1)As reported in this local article, headlined "Justices Try To Sort Out Death Penalty Law," the top judges in the Sunshine State yesterday heard oral argument in a case that requires them to find some clarity in the dark uncertainty concerning the constitutional requirements for death sentencing in the wake of the Supreme Court's Hurst ruling. Here are the details:

The Florida Supreme Court on Tuesday heard arguments in a case focused on whether the state’s new death penalty law is constitutional, and, if so, whether it applies to cases already in the pipeline when the law passed in March.

Tuesday’s hearing was the latest in the court’s months-long scrutiny prompted by a U.S. Supreme Court decision in January that struck down Florida’s death-penalty sentencing process because it unconstitutionally gave too much power to judges, instead of juries.

But the arguments Tuesday in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son, did little to clear up the murky situation surrounding the January ruling, in a case known as Hurst v. Florida, or the new law, hurriedly crafted by lawmakers and signed by Gov. Rick Scott in response to the decision.

“Clearly at this stage in our jurisprudence, we want to make sure that the statute is construed in a constitutional manner so that we don’t have another 15 years of death penalty — if the state wants the death penalty, which apparently it does — in flux,” Justice Barbara Pariente said.

Under Florida’s old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed. That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.

Florida’s new law requires juries to unanimously determine “the existence of at least one aggravating factor” before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed.

Of nearly three dozen states that have the death penalty, Florida is one of just three — including Alabama and Delaware — that do not require unanimous recommendations for a sentence of death. The lack of a unanimous recommendation — a flashpoint for lawmakers, prosecutors and defense lawyers during debate on the new law — was the focus of much of Tuesday’s hearing in the Perry case.

Because Florida’s Constitution requires that jury verdicts be unanimous for convictions, defense lawyers have argued that the death penalty should require a unanimous jury recommendation. Prosecutors, including Attorney General Pam Bondi’s office, disagree.

Chief Justice Jorge Labarga honed in on the issue Tuesday morning. “As you know, 32 states in our country have the death penalty. There are three states who are outliers in this country, Alabama, Delaware and Florida that only require something less than unanimous. … What is the history of Florida in requiring a unanimous verdict?” Labarga asked Martin McClain, a lawyer who has represented more than 250 defendants condemned to death and who made arguments Tuesday as a “friend of the court.” “It’s always been that way in Florida. Since before it was a state, Florida required unanimity in criminal cases for convictions,” McClain replied.

Since the Jan. 12 Hurst ruling, Florida’s high court indefinitely put on hold two executions and heard arguments in more than a dozen death penalty cases, repeatedly asking lawyers on both sides about the impact of the U.S. Supreme Court decision. The Florida court has yet to rule on whether the Hurst decision should be applied retroactively to all, or even some, of Florida’s 390 Death Row inmates.

Perry’s case, meanwhile, hinges on whether the new law should apply to defendants whose prosecutions were underway when the new law went into effect.  While Perry’s lawyer, J. Edwin Mills, argued that the new law should not apply in his client’s case, other defense lawyers are split on the issue. Mills contends his client should receive a life sentence.

Adding more pressure to the justices — who spend much of their time considering appeals in capital cases — lower courts have delayed hearings or decisions in death penalty cases while waiting for Florida Supreme Court to rule, both on the impact of the Hurst decision and on the Perry case.  “Until we get moving forward again, and get a determination from this court as to what Hurst actually means, everything is just sort of up in the air, which is not a good solution for anybody,” Assistant Attorney General Carol Dittmar told the justices Tuesday.

June 8, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"My brain made me do it: will neuroscience change the way we punish criminals?"

The title of this post comes from the headline of this recent interesting press piece from Australia that a helful reader sent my way. The piece does a nice job talking through in simple term the possible relationship between theories of punishment and modern neuroscience.  Here are excerpts:

Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals.  Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment.  According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.

Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?...

[S]ome academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.

According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour.  Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.

We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment.  According to Greene and Cohen, this will make crime reduction the only goal.  If they are right, punishment practices will move in the direction advocated by Eagleman.

Greene and Cohen made their argument about the demise of retributivism ten years ago.  In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence.  We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.

Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain.  Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender.  It is thus used to help determine how much punishment an offender deserves.

This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert.  It presupposes that questions about appropriate punishment are important ones to answer correctly.

One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability. Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury".  The judge went on to say that just punishment was an important factor (among others) in crafting the sentence....

We cannot be sure how neuroscience will affect the law in future.  Indeed, there may even be a backlash against this form of evidence. What can be said is that ... Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations.  This means retributivism is still alive and well, and just punishment still matters to Australian courts.  So, at least for now, the impact of neuroscience is not revolutionary.

June 8, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Tuesday, June 7, 2016

Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter

The discussion of last week's lenient sentencing of a former Stanford University student convicted of multiple counts of sexual assault (basics here) has continued to generate notable mainstream and new media stories.  Here is a round up of reads some of the latest reads that I found interesting:

I also thought worth reprinting was this comment from "Joe R" deep into the comment thread of my last post about this controversial case:

Dude will be on the sex offender registry for life with a violent felony. His life is essentially over. As countless sex offenders have demonstrated with their actions by committing suicide, life in America on the registry is a fate often worse than death.

Rest assured all of you expressing outrage, this kid's life is over, and he has little to no prospect of an enjoyable fulfilling life. He is being severely punished, and hasn't gotten away with anything.

June 7, 2016 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (14)

"The Eighth Amendment's Lost Jurors: Death Qualification and Evolving Standards of Decency"

The title of this post is the title of this notable new article authored by Aliza Plener Cover now available via SSRN. Here is the abstract:

The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty.  While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts.  This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This paper presents the first quantitative study of Witherspoon strikes in real capital cases, measuring the strike rate in eleven Louisiana trials resulting in death verdicts from 2009 to 2013.  Of the 1,445 potential jurors questioned, 325 individuals (22.5%) were excluded from service on the basis of their opposition to the death penalty.  These exclusions had a considerable impact on the racial composition of the jury pool: In the trials for which individualized data on race was available, one-third of black venire members were struck under Witherspoon, and nearly 60% of those struck on this basis were black.  These findings underscore the profound impact of death qualification upon the composition of capital juries and the outcomes of capital trials.  Particularly in the wake of Justice Breyer’s recent call for reconsideration of the death penalty’s constitutionality, there is an urgent need for (a) systematized, ongoing data collection on Witherspoon strikes, and (b) formal consideration of the effect of death qualification in future Eighth Amendment analysis.

June 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Minnesota survey suggests marijuana reform can help with opioid issues ... and other recent highlights from Marijuana Law, Policy & Reform

Anyone interested and concerned about the so-called "war on drugs" or the relationship between criminal justice reform and public health has to be concerned these days with the national opioid problems.  And one of many reasons I am a supporter of state experiements with various forms of marijuana reform is my hope that such reforms might be one of many ways to try to address opioid problems.  Consequently, I was very intrigued to see the details of a lengthy report on a survey done by the Minnesota Department of Health (here in full) showing that a number of health care practitioners reported that some medical patients were able to decrease their use of prescription opioids.   I report on this report in the first of the links below providing recent highlights from my Marijuana Law, Policy & Reform blog: 

June 7, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

New York Times editorial calls for "federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights"

This new New York Times editorial, headlined "To Stop Bad Prosecutors, Call the Feds," call for improving state criminal justice systems by having more federal oversight of those system. Here is the full editorial, concerning which I am eager to hear reactions:

Prosecutors are the most powerful players in the American criminal justice system.  Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.  So why is it so hard to keep them from breaking the law or violating the Constitution?

The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions.  It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights.  There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.

Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.”  Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence.  Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases.  

Nowhere is this situation worse than in Louisiana, where prosecutors seem to believe they are unconstrained by the Constitution.  This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard.  Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway.  Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.  This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing.  But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.

David Brown’s case is a good example of how every part of the justice system bears some responsibility for not fighting prosecutorial misconduct.  State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear.  Professional ethics boards rarely discipline them.  And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of.  Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.

This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.

The department has used this power to monitor police departments in Los Angeles, New Orleans, Detroit and Seattle, among other municipalities with a history of brutality, wrongful arrests, shootings of unarmed civilians and other illegal or unconstitutional practices.  For the most part, the results have been positive.  Since prosecutors are also “law enforcement officers,” there is no reason they and their offices should be immune from federal oversight.

Of course, many district attorneys’ offices will balk at being put under a federal microscope.  But nothing else has worked to prevent misconduct by prosecutors, and the Justice Department is uniquely equipped to ferret out the worst actors and expose their repeated disregard for the law and the Constitution.

Because I do not closely follow local police practices or federal oversight of local police departments, I am not in a position to question (or concur with) the editorial's assertion that "for the most part, the results have been positive" from DOJ's monitoring of some big-city police departments. But even if DOJ has been generally successful at supervising problematic police practices, I am not certain that this means that it could or would be successful at supervising problematic prosecutorial practices. At the same time, there is good reason to be concerned that, at least in some local jurisdictions, it does seem that "nothing else has worked to prevent misconduct by prosecutors."

Personally, I would generally favor a "sunlight is the best disenfectant" approach to dealing with forms of significant lawyer misconduct: how about the feds calling for states to maintain public on-line registries of all public lawyers (both prosecutors and defense attorneys) who clearly have been found guilty of unconstitutional/unethical behavior. I suspect all criminal lawyers now know just how troublesome it can be to have an "on-line record," and so maybe the threat of such a record of misconduct will help deter such behavior in the first instance.

June 7, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Is SCOTUS essentially telling Alabama its capital punishment process in unconstitutional through Hurst GVRs?

The question in the title of this post is prompted by this notable new local article headlined "For third time in 5 weeks, Supreme Court tells Alabama to reconsider death row case." Here are excerpts:

For the third time in five weeks, the U.S. Supreme Court has told an Alabama appeals court to reconsider an Alabama death row inmate's appeal in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.

Two Alabama attorneys said Monday that the moves by the high court indicate justices may be looking at striking down Alabama's death sentencing scheme as unconstitutional. "Personally, I think its crystal clear the Supreme Court has real concerns about the constitutionality of our current death penalty and is clearly putting us on notice of that fact," said Birmingham attorney John Lentine.

Bryan Stevenson, executive director and founder of the Equal Justice Initiative in Montgomery, also stated in an email to AL.com on Monday that "we believe it's now very clear that the U.S. Supreme Court recognizes that Alabama's death penalty scheme is called into question following the Court's ruling in Hurst v. Florida earlier this year. There have been serious flaws in Alabama's process of imposing the death penalty for several years and state courts are going to have to now confront these problems."

The U.S. Supreme Court on Monday remanded the case of Alabama Death Row inmate Ronnie Kirksey back to the Alabama Court of Criminal Appeals for reconsideration of his appeal in light of the Hurst v. Florida decision in January.  The U.S. Supreme Court last month had also ordered the Alabama Court of Criminal Appeals to reconsider its decision in the appeals of Corey Wimbley and Bart Johnson in light of the Florida case....

At issue with Alabama's death penalty scheme is that Alabama permits judges to override a jury's recommendation for a life sentence and impose death. Alabama was one of only three states that allowed such an override. The others were Florida and Delaware. Legislators in Florida's legislature re-wrote its capital punishment sentencing law this spring.

Jefferson County Circuit Judge Tracie Todd in March ruled in four of her capital murder cases that Alabama's capital punishment sentencing scheme is unconstitutional based on the Hurst case. The Alabama Attorney General's Office has appealed Todd's ruling. The decision was spurred by the U.S. Supreme Court's ruling in January that Florida's sentencing scheme allowing judges to override juries in death penalty cases is unconstitutional. Alabama has a similar sentencing scheme.

A number of attorneys around the state have challenged on behalf of their clients the constitutionality of Alabama's capital murder sentencing scheme based on the Florida ruling. All but Todd, however, denied those requests.  District attorneys and Alabama Attorney General Luther Strange have said Alabama's law is not the same as Florida's.

First, Alabama's sentencing scheme was ruled constitutional in 1995 by the U.S. Supreme Court, state prosecutors say. They also have pointed out that the high court held in the Florida case that a jury must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system already requires the jury to do just that, according to an Alabama Attorney General's statement.

A few prior related posts:

June 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

GOP Rep Labrador predicts "we’re going to see some of the greatest reforms in a generation" emerging from Congress

Raul-LabradorSomeone should be collecting all the big talk we have heard from elected officials and pundits about the ground-breaking criminal justice reforms that are purportedly soon to happen in Congress (and, so far, just never quite seem to happen).  As noted in this prior post, at least one notable commentatory was saying in summer 2013 that "momentum for sentencing reform could be unstoppable."  Three years later, as reported in this local article discussing comments at a sentencing reform symposium, one notable member of Congress is still talking about momentum continuing to build:

Idaho GOP Rep. Raul Labrador says momentum is building in Congress for major criminal justice reforms aimed at reversing decades of focus on long prison terms that hit even nonviolent and first-time offenders. “I believe that we’re going to see some of the greatest reforms in a generation,” Labrador told a criminal justice reform conference at Concordia University School of Law in Boise on Monday. “Momentum is building for reform. This Congress alone, I’ve already met with President Obama twice. … This is actually one area that I think I can work with the president.”

Labrador, a Republican and tea party favorite, last year co-sponsored major, bipartisan reform legislation, but it didn’t advance. This year, a less ambitious bill is pending in both houses that includes some of the same provisions, including giving judges more discretion on whether to impose mandatory minimum sentences. “We only have 5 percent of the world’s population in the United States, and the U.S. is home to 25 percent of the world’s prison population,” Labrador said. “We should not be proud of that.”

That bill and several others have cleared the House Judiciary Committee, Labrador said, “and House Speaker Paul Ryan has expressed his support for the movement and has promised me to bring a reform package to the floor for a vote this year.”

It hasn’t happened yet, and Labrador acknowledged that hopes are fading as more of the year passes by. “It’s a little bit watered down,” he said. “They had to look at the political reality, what can pass in the Senate and the House.”

Still, he pledged to continue to push the issue, one that Labrador, an immigration and criminal defense attorney, said he started work on as soon as he arrived in Congress.

Here are some more quotes of note that emerged from this Concordia University School of Law sentencing conference:

“Eighty percent of federal drug prisoners have no history of violence, and more than 25 percent have no criminal history at all,” said Alex Kreit, professor at the Thomas Jefferson School of Law in San Diego and an expert and textbook author on controlled substances and marijuana regulation. “This, in a nutshell, is what is driving interest in federal drug sentencing reform.” Half of the federal prison population consists of drug offenders, Kreit said, though they comprise only a quarter of those admitted each year. “Part of that is the lengthy drug sentences that we have.”

Though some reforms have happened, notably congressional action in 2010 to reduce the disparity between crack cocaine and powdered cocaine sentences, federal drug sentencing laws remain largely unchanged. “I think there are a lot of people coalescing around the idea that what we have been doing hasn’t worked in the way we wanted it to work, said Wendy Olson, U.S. Attorney for Idaho. “I think all of us in criminal justice have an obligation to look at that.”

U.S. District Judge B. Lynn Winmill said his 28 years on the bench have shown him that the war on drugs has been “an abysmal failure – we certainly have not reduced drug consumption. Whatever has happened, it has not been worth the price that we have paid.”

He said its casualties have largely been low-level drug offenders who were associated with large quantities of drugs – couriers, truck drivers, addicts hired to unload trucks. “Kingpins are almost immune, in the same way that generals and commanders in chief are typically immune during wars,” Winmill said, “and if they are brought down, what happens is that they’re immediately replaced.”

Plus, though African-Americans and Hispanics use drugs at about the same rate as the general population, Winmill said, “The incarceration rate for African-Americans and Hispanics is off the charts. Now, is that implicit bias? Is it overt bias? Is it a result of a policy from Congress that reflects bias? I don’t know. But I think it certainly is something we need to think long and hard about.”

June 7, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Monday, June 6, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

US Sentencing Commission posts big new report authored by its Tribal Issues Advisory Group

I received via email today a US Sentencing Commission notice about these notable new tribal sentencing activities:

Today, the Commission’s Tribal Issues Advisory Group (TIAG) released its final report addressing federal sentencing issues related to American Indian defendants and victims and to offenses committed in Indian Country.

The Commission has scheduled a public hearing for July 21, 2016 to receive testimony from members of the TIAG on this report. The TIAG will present its findings and subsequent recommendations for amending the federal sentencing guidelines.

The full TIAG report runs more than 100 pages, but it starts with this helpful, brief and interesting executive summary:

The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines:

(1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category;

(2) Including in USSG §1B1.1 a definition of “court protection order;”

(3) Amending USSG §5H1.1 regarding the “age” policy statement; and

(4) Adding a departure concerning juvenile and youthful offenders as USSG §5K2.25.

The TIAG recommends that the Commission adopt certain policy changes including:

(1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate;

(2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and

(3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.

The TIAG also recommends that the Commission support changes in federal law and practice including:

(1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities;

(2) Increased use of pretrial diversion agreements by United States Attorneys’ offices;

(3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country;

(4) Better training of federal employees who work in Indian country about Native American history and culture; and

(5) Revisions to the Juvenile Delinquency Act, 18 U.S.C. § 5032, to require federal consultation with tribes in certain juvenile case prosecutions.

This Report provides the basis for and an explanation of these and other recommendations.

June 6, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

SCOTUS talks through PLRA's exhaustion requirement

The only criminal justice opinion handed down by the Supreme Court this morning concerned the application of the Prison Litigation Reform Act in Ross v. Blake, No. No. 15–339 (S. Ct. June 6, 2016) (available here). Justice Kagan wrote the opinion for the unanimous Court in Ross, which gets started this way:

The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions.  42 U. S. C. §1997e(a).  The court below adopted an unwritten “special circumstances” exception to that provision, permitting some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies.  Today, we reject that freewheeling approach to exhaustion as inconsistent with the PLRA. But we also underscore that statute’s built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not “available.”  The briefs and other submissions filed in this case suggest the possibility that the aggrieved inmate lacked an available administrative remedy. That issue remains open for consideration on remand, in light of the principles stated below.

Because this is obviously a "modest" opinion (as was the other civil ruling SCOTUS released today), I suspect the SCOTUS press will be buzzing mostly about Texas capital case grants noted in this prior post.

June 6, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

SCOTUS grants cert two notable Texas capital cases

Those eager to see SCOTUS continue to question the operation of the death penalty in the US have some news to celebrate from the court via this new order list: the Justices this morning granted certain two capital cases from Texas, Moore v. Texas and Buck v. Stephens. Over at SCOTUSblog, Amy Howe has already provided this quick response to a question as to whether these Cases are notable:

They are both reasonably interesting.  Moore v. Texas includes both a question about the standard for determining whether an inmate is intellectually disabled and the question whether executing an inmate after a long stay on death row violates the Eighth Amendment's prohibition on cruel and unusual punishment.

The Buck case is about an expert witness for the defense (!) testifying that Buck was likely to be more dangerous and thus more a candidate for death sentence because he is black.

In other words, high-salience issues concerning race, mental disabilities and delays before execution are all before the Court in these cases. Among other likely echo effects from these grants, I suspect this means there will be lots and lots of (mostly abolitionist) commentary about these cases in the weeks and months to come, and also that hearings for the next SCOTUS nominee (whenever they might occur) will include some significant focus on the constitutionality of capital punishment.

UPDATE:  This revised version of the SCOTUS order list indicates that in Moore the Justices will only be considering the way Texas handles application of its Atkins intellectual disability limit on who can be eligible for the death penalty.  Still, as this SCOTUSblog post by Lyle Denniston details, these two cases will still provide plenty of grist for the capital case controversy mill.

June 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Sunday, June 5, 2016

"Deadly Statistics: Quantifying an 'Unacceptable Risk' in Capital Punishment"

The title of this post is the title of this notable new article by David Kaye now available via SSRN. Here is the abstract:

In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment ban on cruel and unusual punishment precludes capital punishment for intellectually disabled offenders.  Death-penalty states responded with laws defining intellectual disability in various ways.  In Hall v. Florida, the Court narrowly struck down the use of a measured IQ of 70 to mark the upper limit of intellectual disability because it created “an unacceptable risk that persons with intellectual disability will be executed.”  But the Court was unclear if not inconsistent in its description of an upper limit that would be acceptable. Four dissenting Justices accused the majority not only of misconstruing the Eighth Amendment, but also of misunderstanding elementary statistics and psychometrics.

This article uses more complete statistical reasoning to explicate the Court’s concept of unacceptable risk.  It describes better ways to control the risk of error than the Court’s confidence intervals, and it argues that, to the extent that the Eighth Amendment allows any quantitative cut score in determining an offender’s intellectual disability, these more technically appropriate methods are constitutionally permissible.

June 5, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing

The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process.  The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.  The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing.  The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.

Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.

Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders.  They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.  The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?”  Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.

Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision.  “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.

Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools.  Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.

Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women.  COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.

The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”

June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Might SCOTUS soon (finally!) take up the constitutionality of solitary confinement?

Way back in March 2009, I asked via this post "Why isn't there more constitutional litigation over the 'hellhole' that is extended solitary confinement?".  And last year, as noted this post, Justice Anthony Kennedy essentially asked the same question via a remarkable (off-point) concurrence in the SCOTUS ruling in Davis v. Ayala.  Consequently, I was intrigued to see this new Mother Jones article headlined "The Supreme Court Might Finally Take On Solitary Confinement: The court could announce Monday whether it will consider the long-term solitary confinement of a death row inmate." Here is how the piece gets started:

Bobby Moore has been on death row in Texas for more than 35 years, for a murder he committed in 1980 at the age of 20.  He's come close to dying twice; once, he was hours away from execution before a court intervened.  For the past 15 years, he's been in solitary confinement nearly 23 hours a day, unable to interact with other inmates, in a type of cell described in legal filings as "virtual incubators of psychoses."

The Supreme Court is now considering Moore's claim that his solitary incarceration and the long delay between his conviction and execution are violations of the Eighth Amendment's ban on cruel and unusual punishment.  Moore's petition has been pending for nearly a month, but a decision on whether the Supreme Court will hear it could come on Monday.  If the court takes up the case, its ruling could have profound implications for the nation's nearly 3,000 death row inmates, who are often confined to solitary cells and await execution for an average of more than 15 years.  If Moore wins, not only could he get off death row, but many inmates in his position could follow.

The high court has repeatedly refused to hear cases challenging an excessive delay of an execution as unconstitutional, and it's never directly confronted solitary confinement on death row.  But there are signs that the justices are seriously considering Moore's case.  The court grants only about 70 petitions a year, out of 9,000 filings, so most cases are dismissed quickly.  But it has relisted Moore's case for its weekly review conference three times, an unusual move.

Some of the court's liberal justices have spoken out about long solitary stays on death row for a long time.  Justice John Paul Stevens, who retired in 2010, was a notable advocate for the position that extended incarceration for capital offenders was a clear constitutional violation, one he first embraced more than 20 years ago.  Stevens gained an ally in Justice Stephen Breyer, who wrote in 1999, "It is difficult to deny the suffering inherent in a prolonged wait for execution."  Breyer cited these long waits in a lengthy dissent last year, in which he declared his view that capital punishment in any form is unconstitutional — a dissent joined by Justice Ruth Bader Ginsburg.  Last month, he objected to the court's refusal to take up a California death row case raising the issue, arguing that "unconscionably long delays...undermine the death penalty’s penological purpose."

The conservative justices, though, have been less sympathetic — that is, until 2014, when almost out of the blue, Anthony Kennedy, a Ronald Reagan appointee and the court's frequent swing vote, expressed concern about solitary confinement during oral arguments in a case.  He has since shown more signs that he could eventually be a decisive vote in forcing the court to confront the issue at last.

For various reasons, I would like to see the Supreme Court take up the constitutionality of extended solitary confinement in a non-capital case. But, obviously, that has not happened yet so I suppose my perspective now is that taking up the issue in a capital case is good enough for SCOTUS work.

Some of many prior related posts:

June 5, 2016 in Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, June 4, 2016

"The Real Felony: Denying Prisoners the Right to Vote"

The title of this post is the headline of this new Daily Beast commentary by Barrett Holmes Pitner. It starts and ends this way:

Recently, Hillary Clinton dramatically put voting rights back on the national agenda with an audacious call to register every American citizen when he or she turns 18. Voter ID laws are not new issues in our politics, but Clinton’s full-throated appeal felt serious and sincere: Perhaps we will finally tackle the perverse voter disenfranchisement of minorities and the poor that still persists throughout this country.

But I’ll go her one better. If Hillary is serious about social justice and equality, I hope she does not overlook one nearly voiceless population that needs to be included in this debate: ex-convicts returning home from prison, and, yes, even incarcerated prisoners....

It is becoming more apparent that voting is a responsibility that needs to be fostered, and many people develop the voting habit from observing previous generations. Voting builds stronger communities of people who are more likely to participate in the democratic process. Similarly, inmates who are able to vote will feel more connected and invested in their communities, and can set a positive example to the outside world while they are behind bars.

It may be easy to discredit how informed inmates may be, but data are emerging showing that “informed” voters by and large vote along party lines and are not as well versed on the issues as we would like to believe. And we need not forget that prisoners have plenty of spare time, and are one of the few demographics that could leisurely read two newspapers a day and still find time to watch the evening news.

The argument for keeping the incarcerated and the newly released off the voting rolls is based on an archaic punitive disciplinary structure that we need to move beyond. Maintaining an electoral process that actively works to disenfranchise nearly 3 percent of eligible voters is a structure that no democratic nation should support.

June 4, 2016 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

Could criminal defendants try to use GOP Prez candidate Trump's bias claims to bollix up prosecutions?

160601-trump-curiel-mn-1130_27cbe2a864fffd0c78aefb18f60a06c9I always try to stay open-minded about all people's political and personal perspectives, and I have thus to date been disinclined to think the worst about GOP Prez candidate Donald Trump and the prospect of him becoming the next President of the United States.  But I am quite troubled by Trump's recent attacks on a federal judge, and those attacks prompt the provocative question in the title of this post.  This new NPR piece, headlined "Trump Presses Case That 'Mexican' Judge Curiel Is Biased Against Him," provides the basic backstory:  

Donald Trump is intensifying his attacks on the federal judge presiding over fraud lawsuits against Trump University. On Friday the presumptive Republican presidential nominee, dismissing criticism from legal experts on the right and left, pressed his case against U.S. District Judge Gonzalo Curiel, saying the Indiana-born judge is biased against him because "he's a Mexican.  We're building a wall between here and Mexico."

Trump made the remarks, and others like it, repeatedly, in interviews with CNN and The Wall Street Journal, referring to Judge Curiel variously as "of Mexican heritage" or just "Mexican."  But the message was always the same, that the judge had what Trump called "a conflict" because of his ethnicity.

At a rally in San Diego last week, Trump characterized the judge as "a hater of Donald Trump, a hater. He's a hater." And "they ought to look into Judge Curiel."  In public, Trump has called repeatedly for the judge to recuse himself, but his lawyers in fact have not made any such request.

That is undoubtedly because court precedents are unanimous in holding that race, ethnicity, gender, religion and sexual orientation are not themselves grounds for disqualifying a judge.  If they were, lethal ethicists observe, the legal system would fall into chaos because no judge would be free from taint.  The five Supreme Court justices who are Catholic could not rule on a case in which the Catholic church participated, but neither could the other justices who are not Catholic.

Moreover, while Trump is free to say anything he wants about the judge, the lawyers in the case are bound by the professional rules of conduct and could be sanctioned for making such charges about Curiel without actual evidence of bias.  Legal ethics expert Stephen Gillers notes in addition that litigants may not wait to seek a judge's disqualification; they must move to recuse the judge as soon as they know there is a conflict.

Trump's lawyers, from the prestigious O'Melveny & Myers firm, however, have not done that. Indeed, some observers argue that the judge did the candidate a big favor by postponing the trial in the case until after the election. And Trump did not become bellicose about Curiel until the judge, at the request of news organizations, ordered the unsealing of documents in the case — documents that have proved embarrassing for the GOP presumptive nominee.

"This is not really about rebutting accusations that Trump University defrauded its students," said NYU's Gillers. Rather, it is a kind of dog whistle to supporters, "a way to keep the subject of illegal Mexican immigration on the front page."

Judge Curiel, appointed to the federal bench by President Obama, was born in Indiana, the son of Mexican-American immigrants. He served for 17 years as a federal prosecutor in California, rising to chief of narcotics enforcement in the southern district. In 1997 he was believed to be the target of an assassination attempt from a Mexican drug cartel, was put under 24-hour watch by the U.S. Marshall Service for a year, was moved to a military base and eventually to Justice Department headquarters in Washington, D.C.

I am not aware of any criminal defendants who have successfully sought disqualification of a judge (or a prosecutor) based solely on the basis of that judge's race, ethnicity, gender, religion and sexual orientation.  That said, I certainly have heard criminal defendants assert, like Donald Trump, that a prosecutor or a judge is biased on one of the bases.  And if repeatedly making such claims in public to serve a political or personal agenda is good enough for the GOP's Prez nominee, why couldn't a criminal defendant unhappy with how a prosecution is moving forward start making similar claims to serve his hew own agenda?

June 4, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

"What Do Criminals Deserve?"

The title of this post is the title of this new book chapter authored by Douglas Husak now available via SSRN. Here is the abstract:

I attempt to specify the precise role played by desert in a justification of state punishment.  To this end, I contrast the questions that must be resolved from those that need not be addressed at all or cannot be answered to anyone's satisfaction.  I argue that much can be learned about the justification of state punishment by focusing on situations in which persons react appropriately to culpable wrongdoing perpetrated by non-state actors.  I conclude that the greatest difficulty for desert theorists is to explain why the deprivations and stigma legitimately inflicted by victims should take the form of hard treatment and censure imposed by the state.  I offer a few inconclusive suggestions about how this latter problem might be solved.

June 4, 2016 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, June 3, 2016

Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence

Images (2)Regular readers likely know the name Weldon Angelos and likely recall some of the details of his 55-year mandatory minimum federal sentence based on his convictions for low-level marijuana dealing and firearm possession.  And regular readers likely will also be intrigued and heartened to read this new Washington Post story, headlined "Utah man whose long drug sentence stirred controversy is released," indicating that Weldon was released earlier this week.  Here are the (somewhat mysterious) details:

One federal inmate who was released — but not under Obama’s clemency initiative — is Weldon Angelos, 36, a father of three from Utah who was sentenced in 2004 to a 55-year mandatory minimum prison term in connection with selling marijuana.

The specific circumstances of Angelos’s release are unclear because court records in his case are sealed. But after a long campaign from his supporters, including Sen. Mike Lee (R-Utah), Angelos was quietly released Tuesday after a federal court granted him an immediate reduction in sentence. He was able to immediately go home to his family without serving three months in a halfway house, as those who receive clemency are required to do. The release allowed Angelos to see the son he left at age 7 graduate from high school Thursday.

Angelos is one of the nation’s most famous nonviolent drug offenders and became a symbol of what advocates said was the severity and unfairness of mandatory sentences. His case was championed by the group Families Against Mandatory Minimums, former FBI director Bill Sessions, conservative billionaire Charles Koch and others. Three years ago, more than 100 former judges and prosecutors, former elected and appointed government officials, and prominent authors, scholars, activists and business leaders signed a letter urging Obama to grant Angelos commutation.

In February, former federal judge Paul G. Cassell, who sentenced Angelos, wrote a letter asking Obama to swiftly grant him clemency. Cassell said that the sentence he was forced to impose was “one of the most troubling that I ever faced in my five years on the federal bench” and that it was one of the chief reasons he stepped down as a judge.

But Obama never granted clemency to Angelos. The granting of mercy instead came from the Salt Lake City prosecutor who charged him in the case, according to his lawyer. “After three and half years of inaction on Weldon’s clemency petition, he is free because of the fair and good action of a prosecutor,” attorney Mark W. Osler said. “He returns to citizenship because of the actions of one individual — just not the individual I was expecting. Weldon’s freedom is a wonderful thing but remains just one bright spot among many continuing tragedies.”

A White House spokeswoman said that the White House cannot respond with details about any individual clemency case. Julie Stewart, president of Families Against Mandatory Minimums, called the release of Angelos “fantastic news and past due.”

I am inclined to guess, absent hearing any details to the contrary, that the Utah federal prosecutor agreed to what some have come to call a Holloway motion: a motion first engineered by former Judge John Glesson in the case of Francios Holloway (discussed here) by urging prosecutors to move to undo stacked federal gun charges that had resulted in acrazy-long mandatory minimum prison term.

A few of many prior related posts on Angelos and Holloway cases:

June 3, 2016 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Prez Obama commutes 42 more federal prison sentences

Chart_060316_commutations[1]As reported in this AP piece, this afternoon "President Barack Obama is commuting the sentences of 42 people convicted of drug-related offenses." Here is more:

Obama's latest round of clemency brings to 348 the total number of sentences Obama has commuted since taking office. The pace has increased substantially as Obama approaches the end of his presidency. Roughly half of the 42 receiving commutations Friday were serving life sentences. Most are nonviolent offenders, although a few were also charged with firearms violations.

Obama's commutation shortens their sentences, with most of the inmates set to be released October 1.

White House counsel Neil Eggleston says Obama will keep using his clemency power to give deserving individuals a second chance. Obama has pushed to overhaul the criminal justice system but a bipartisan effort has struggled to maintain momentum.

Via this blog post (which provides the graphic reprinted here), Prez Obama's counsel notes that that "President Obama Has Now Commuted the Sentences of 348 Individuals" and highlights that now "the President has commuted the sentences of more individuals than the past 7 presidents combined." Here is more from the blog posting:

Today, the President announced 42 additional grants of clemency to men and women serving years in prison under outdated and unduly harsh sentencing laws. The individuals receiving a presidential commutation today have more than repaid their debt to society and earned this second chance.

To date, the President has commuted the sentences of 348 individuals -- more than the previous seven Presidents combined. He remains committed to using his clemency power throughout the remainder of the Administration to give more deserving individuals that same second chance....

Despite these important efforts, only legislation can bring about lasting change to the federal system. There remain thousands of men and women in federal prison serving sentences longer than necessary, often due to overly harsh mandatory minimum sentences. That is one reason it is critical that both the House and the Senate continue to cooperate on a bipartisan basis to get a criminal justice reform bill to the President's desk.

June 3, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Conservatives should celebrate Obama’s commutations"

Institute_for_Policy_Innovation_1313374The title of this post is the headline of this new Dallas Morning News commatary.  The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:

The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation.  This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration.  And word out of the White House is that there will be more to come during President Obama’s final months in office.

Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime.  But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.

It’s becoming clear that something has gone very wrong with the justice system in the United States.  Today, the U.S. has the highest incarceration rate in the world.  Too many crimes have been federalized, as opposed to being handled more locally by state and local courts.  Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements.  And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....

Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums.  While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict.  It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.

Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm.  Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison.  Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences.  But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.

Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption.  Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”

Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption.  Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive.  Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities.  And libertarians — well, libertarians already get it.

There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration.  But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.

June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Appellate judges certify to Florida Supreme Court whether state sentencing scheme violates Due Process Clause or Eighth Amendment

A helpful reader alerted me to a remarkable decision handed down earlier this week by the Florida's Fourth District Court of Appeals. The reader provided this helpful summary that I could reprint here (with my emphasis added):

The Fourth District Court of Appeal wrote a decision that (in essence) asks our Supreme Court to revisit the constitutionality of our sentencing scheme, a scheme that gives judges complete discretion to sentence a defendant anywhere between a calculated "lowest permissible sentence" and the statutory maximums stacked end to end. This system of nearly unlimited sentencing discretion is everything Judge Frankel decried, and the sentence the court reviewed is a case in point: the defendant was 55 years old, he had no prior record, and his "lowest permissible sentence" was 23.7 months in prison.  For trying and failing to steal three boat motors he was sentenced to 35 years in prison (the statutory maximums stacked end to end), effectively a life sentence.

Judge Gross wrote a thoughtful and scholarly concurring opinion that begins with the history of sentencing in Florida, talks about the evils of unfettered sentencing discretion, and ends with Judge Frankel and his modest proposal that judges be required to explain their sentencing decisions (at present they need say nothing).

Here is the question the court certified to Florida Supreme Court as one of great public importance:

Does a sentence within the statutory maximum under the Criminal Punishment Code violate either the Due Process Clause or Eighth Amendment when it is significantly greater than the lowest permissible sentence on the defendant’s scoresheet or the offered plea and grossly disproportionate to the median sentence imposed for similar crimes within the jurisdiction?

Alfonso-Roche v. Florida, No. 4D13-3689 (Fla. 4th DCA June 1, 2016) (available here).

I do not know enough about Florida's appellate procedures to know if the Florida Supreme Court will now have to, or at least is now very likely to, take up these important constitutional issues.  But for anyone and everyone working in state or federal systems worried about the exercise of unfettered sentencing discretion, this Alfonso-Roche decision is today's must-read.

June 3, 2016 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Former House Speaker (and future Trump running-mate?) Newt Gingrich helps make the case for "raising the age" for adult prosecutions

Regular readers know that Newt Gingrich has become a notable and frequent "right on crime" commentator calling for all sorts of criminal justice reforms in all sorts of settings.  And here we have another example:  this new commentary authored by Gingrich and Pat Nolan, headlined "Don’t train kids to be felons in adult jails," makes the case for limiting the prosecution of teenagers as adults in Louisiana.  Here are excerpts: 

The noted “tough on crime” criminologist John Dilulio once commented that “jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.” Louisiana should heed Dilulio’s caution against locking up young petty criminals alongside violent adult criminals. The Bayou State is one of only nine states that prosecutes 17-year-olds as adults, often for the most minor of crimes (stealing a bag of potato chips, for instance).

We all can agree that breaking the law is wrong and that these teens deserve to face consequences for their actions. But tossing them into adult jails with hardened criminals just makes those bad situations worse. The research and data are clear: Adult jails are no place for teenagers, who with the help and guidance of parents are likely able to turn their lives around.

Placing youngsters in adult jails makes them more likely to be victims of rape and assault, and more likely to commit suicide. They also are likely to learn a lot more about leading a life of crime from the hardened criminals. There is a lot of truth in the notion that jails and prisons are graduate schools of crime.

In addition, the damage of this policy continues long after they are released. By treating teens differently from the majority of the country, Louisiana makes it harder for them to grow into successful adults....

Fortunately, the Legislature is working on a bill to “Raise the Age” of juvenile jurisdiction. It would assign most 17-year-olds who commit offenses to the juvenile justice system, where they would be held accountable, continue their schooling, learn critical skills and be prepared to live productive and healthy lives as law-abiding members of society. Prosecutors still would be free to choose to prosecute youth accused of more serious offenses as adults....

Raising the age would make society safer and stronger by doing away with the destructive “one-size-fits-all punishment” system we have now. Adult jails and prisons can turn teens into career criminals, and taxpayers are stuck with the bill. By raising the age of how we punish and reform young people who make minor mistakes, Louisiana will help these kids turn their lives around, will make neighborhoods safer and in the process will save taxpayers money. This is being smart on crime.

As the headline of this post highlights, I think Gingrich's continued advocacy for all sort of criminal justice reform is especially notable and important in light of the fact that he name is being brought up repeatedly as a possible running mate for GOP Prez nominee Donald Trump.  As detailed in a number of posts linked below, Gingrich has had his name on many commentaries in the last few years vocally supporting a wide array of modern state and federal sentencing reform efforts.  If Trump were in fact to select Gingrich as his running mate, I would have to rethink my belief (and fear) that the Trump campaign will be actively opposing most criminal justice reform efforts.

Prior related posts about Gingrich's criminal justice reform advocacy:

June 3, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, June 2, 2016

"Rich Defendants’ Request to Judges: Lock Me Up in a Gilded Cage"

The title of this post is the headline of this lengthy front-page New York Times article.  Here are excerpts:

Last October, Ng Lap Seng, a Chinese billionaire indicted on charges that he bribed the former president of the United Nations General Assembly, was granted bond of $50 million, secured by $20 million cash and a Midtown apartment where he would be confined and subjected to GPS monitoring and round­the­clock guards at his own expense.

Many thousands of people arrested in New York languish in the city’s jails because they are unable to make even modest bail. So advocates for prisoners and lawyers for indigent defendants say the idea that some defendants are able to stay out of jail because they have the means to finance a novel confinement plan is blatantly unfair.

“It just reinforces for me the point that our entire system of pretrial detention is predominantly based on wealth,” said Inimai M. Chettiar, a lawyer at the Brennan Center for Justice who runs an initiative to end mass incarceration. Joshua Norkin, a lawyer at the Legal Aid Society of New York, said the elaborate bail package that was being proposed for Mr. Zarrab and that was granted to Mr. Ng should remind judges in the state court system that they have the tools to release low-­income people “on alternative and more creative forms of bail, and they’re failing to do it.”

The cases of wealthy defendants’ receiving special bail conditions are not limited to international defendants. In 2009, Marc S. Dreier, a Manhattan lawyer who pleaded guilty to running an elaborate scheme that defrauded hedge funds and other investors of $700 million, was granted a $10 million bond pending trial and remained in his East Side apartment, secured by electronic monitoring and armed security guards, which his family paid for.

June 2, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Praise for recent Nesbeth opinion using collateral consequences to justify probation sentence for federal drug offense

Lincoln Caplan has authored this New Yorker piece, headlined "Why a Brooklyn Judge Refused to Send a Drug Courier to Prison," to praise US District Judge Block's discussion of the impact and import of collateral consequences in his Nesbeth sentencing opinion (first discussed here). Here are excerpts:

Block explained that he had imposed a year of probation, with two special conditions: six months of home confinement (“to drive home the point that even though I have not put her in prison, I consider her crimes to be serious”) and a hundred hours of community service (“in the hope that the Probation Department will find a vehicle for Ms. Nesbeth, as an object lesson, to counsel young people as to how their lives can be destroyed if they succumb to the temptation to commit a crime, regardless of their circumstances”). 
But the bulk of his opinion — the reason federal judges throughout the country have been sending it to one another as a cutting-edge view on an important issue in sentencing—is about why he “rendered a non-incarceratory sentence.”  He wrote that it was largely “because of a number of statutory and regulatory collateral consequences she will face as a convicted felon” — restrictions that the federal government, as well as every state government, imposes on anyone convicted of a crime, but especially a felony. A broad range of the restrictions, he said, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”

Block asked the U.S. Attorney’s office and the Federal Defenders of New York, which represented Nesbeth, to provide him with a list of the collateral consequences that she faces as a convicted felon.  The government identified what it described as the “handful” that are “potentially relevant.”  The loss of a driver’s license is the least onerous. She is also ineligible for student grants, loans, or work assistance for two years, and banned for life from receiving food stamps and Temporary Assistance for Needy Families, though Connecticut could grant her an exemption.  She and her family can be denied federally assisted housing for a “reasonable time,” and she cannot be issued a passport until her probation is finished, which matters to Nesbeth because, as her lawyer told the judge, her “father, grandmother, and extended family all reside abroad.”

The judge recounted that federal law imposes considerably more than a handful of consequences, “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.”  Nesbeth’s counsel, Amanda David, of the Federal Defenders, said federal laws will make it difficult for her client to become an educator because they provide money “for background checks of all employees of educational agencies,” and a conviction for a drug felony “can be used as grounds for denying employment for potential employees who want to be involved in providing care to children under age 18.”  David also reported that Connecticut automatically bars anyone from getting a teaching certificate for five years after being convicted of a drug felony....

The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time.  As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.”  They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”

The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.

Prior related post:

June 2, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

FreedomWorks explains why GOP opposition to federal sentencing reform is "unreasonable"

Writing at FreedomWorks, Jason Pye has this lengthy posting headlined "The Unreasonable Opposition to Justice Reform in the Senate," which gets started this way (with links in the original):

Recently, Sen. Tom Cotton (R-Ark.) gave a speech at the Hudson Institute in Washington, in which he offered his case against the justice reform effort in Congress led by conservatives like Sen. Mike Lee (R-Utah), Sen. Tim Scott (R-S.C.), and Rep. Raul Labrador (R-Idaho).  Apparently unaware of the efforts of more than 30 states, including several traditionally Republican states, Cotton ridiculously labeled the federal push as "criminal leniency."

FreedomWorks has already responded to some of Cotton's hyperbolic statements on justice reform. Unfortunately, even after proposed legislation was improved to address the concerns of a handful of senators, Cotton doubled down on his opposition in his speech. Some of the more egregious comments from his speech are in italics below, immediately followed by a response to set the record straight.

"These policies are not merely wrong. They are dangerous. They threaten a return to the worst days of the 1990s, when law-abiding citizens lived in fear of their lives. Indeed, we may be living through the leading edge of a new crime wave. Over the last two years, murders across 56 of our largest cities are up 17 percent. The numbers are even more shocking in some cities. In Chicago, murders jumped 70 percent in the first quarter of this year alone. In Las Vegas, 81 percent. In Long Beach, 125 percent."

These are deceptive words, to say the least. As Cotton mentioned, crime rates have declined significantly since the early 1990s. Pew Research found that gun-related homicides, including suicides, declined by 31 percent between 1993 and 2014. Excluding suicides, the figure is closer to 49 percent. Over the same period, the nonfatal firearm crime victimization rate declined by nearly 75 percent. A separate report released in 2013 noted that the public was largely unaware that violent crime was on the decline.

There has been much made of a "new crime wave," but it is difficult for anyone to make such a statement based on a short-term look at the data. The Federal Bureau of Investigation (FBI) publishes annual reports on crime data that offers more context and insight, rather than anecdote. Even in the midst of the decline in crime rates, the United States experienced two consecutive years in which homicide rates increased, 2005 and 2006. In 2007, the homicide rate began to decline again.

According to the last two full-year reports, crime continued to decline, almost across the board. In 2013, crime, including homicides and other violent crime, was down. The downward trend continued in 2014. The FBI hasn't released data for all of 2015; the report is not due for a few more months. The Brennan Center released a preliminary analysis of crime rates in 2015 and found that the "new crime wave," as Cotton puts it, does not exist. But even if the overall crime rate increased, it does not mean that there is some new crime wave. Again, 2005 and 2006 proved to be outliers, and 2015, if the crime rate does rise, may be just that.

June 2, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (6)

Wednesday, June 1, 2016

Are there really now lots more conservatives in lots of states "starting to question the cost and legality of capital punishment"?

The question in the title of this post is prompted by this new short Governing article with this full headline: "The Death Penalty’s New Skeptics: In states across the country, conservatives are starting to question the cost and legality of capital punishment."  Here are excerpts from the article:

It’s a government program that is prone to error, marred by long delays and far more expensive than alternative policies.  So it may be little wonder that the death penalty keeps attracting new opposition. But it’s surprising where some of that opposition is coming from. 

Over the past decade, the death penalty has been abolished in seven states. Most of those are dominated by Democrats. But the most recent is deeply conservative Nebraska, where lawmakers overrode Gov. Pete Ricketts’ veto of an abolition bill last year.  Other red states are revisiting the issue as well.   A bill to abolish the death penalty fell short by a single vote in a Kentucky House committee this year, while similar legislation actually passed the Utah Senate before failing in the House.  Last year, the Montana House killed an abolition bill on a tie vote.  A few months later, a judge there imposed a moratorium on executions, citing the difficulty of obtaining appropriate drugs for lethal injection -- an issue that has put capital punishment on hold in several states.  Litigation over delayed or botched executions compounds problems with meting out the penalty.  “Our death penalty is a joke,” Republican state Rep. Clayton Fiscus said during the debate.

The average death row inmate can cost tens of thousands of dollars a year more to house than run-of-the-mill criminals.  Prisoners who are executed can cost upward of $1 million more than those sentenced to life without possibility of parole.  “This is a program that’s so bad, the left and right can actually agree on it,” says Marc Hyden, a former field representative with the National Rifle Association who now works for an advocacy group called Conservatives Concerned About the Death Penalty....

[I]t’s indisputable that the growing corps of death penalty skeptics now includes many conservatives.  There are enough Republican legislators in Washington state ready to join with Democrats that a repeal measure there could pass, if a key committee chair would allow it to come to a vote.  “Many of us conservatives don’t trust government to launch a health-care program or fill potholes, let alone carry out life and death,” Hyden says.  “It’s the quintessential broken big-government program.”

I would not dispute that a few prominent GOP elected officials in a few states that have never had a long history of active and effective use of the death penalty may ultimately conclude (as did some in the Nebraska legislature) that it makes more sense to end rather than try to mend a rarely-applied punishment. But I do not believe any of the 17 persons who sought the GOP nomination for Prez this year had ever expressed any reservation about the death penalty either in theory or in practice.

June 1, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

"Correctional Control: Incarceration and supervision by state"

The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):

Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.

For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation.  We make the data accessible in one nationwide chart and 100 state-specific pie charts.

Incarceration rates do not always tell the complete story of the criminal justice system in each state.  Notably, some of the states that are the least likely to send people to prison, such as Rhode Island and Minnesota, are among the most punitive when other methods of correctional control are taken into account.  Other states that rank in the bottom half of incarceration rates nationwide, such as Ohio and Idaho, end up surpassing Louisiana — the state notorious for being the global leader in incarceration — in rates of correctional control.  Georgia is punitive from any angle, as the only state that is both a top jailer and leader in probation.

We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.

Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.

Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population.  We find that for every 100 people incarcerated in a state prison in that state:

  • Maine has 1 person on parole.
  • Florida has 4 people on parole.
  • Arkansas has 117 people on parole.
  • Pennsylvania has 198 people on parole.

June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Examining the high costs of expungement process in some jurisdictions

The Marshall Project has this effective new piece highlighting the ugly economics behind how some jurisdictions handle the expungement processes.  The piece is headlined "Want to Clear Your Record? It’ll Cost You $450: In Tennessee and other states, former felons can’t always afford it." Here are excerpts:

Many states charge $150 or less to apply for expungement, the legal term for clearing a criminal record, and some states offer a waiver if the applicant is too poor to pay.  But the Tennessee legislature wanted money for the state’s general fund, so it set the fee much higher.

While a gun permit may be discretionary, a decent job or money for an education are crucial, and for many people once convicted of a crime, Tennessee’s high fee has put expungement out of the reach.  In Tennessee, there are 958 restrictions based on a criminal record, including disqualification for any state-funded student loan or grant. A record also bars employment in a number of fields and any job that involves working with children.

In recent years, increased attention to the connection between these restrictions, which make it difficult to lead a stable life, and recidivism has spurred lawmakers in states across the country to pass legislation affording those with a conviction or an arrest a clean slate, according to a Vera Institute report.  Between 2009 and 2014, 31 states and Washington, D.C., established or expanded expungement laws. Most laws only included misdemeanor convictions or arrest records. A growing number of states are including some low-level, non-violent felonies.  Of the 17 states that do so, the application fee is generally in line with standard court fees. But three states are charging far more. Tennessee’s $450 is trumped by Louisiana's $550 fee, and as of July, Kentucky will charge $500.

Louisiana’s high fee results from inefficiencies that make processing an application arduous — the state’s jurisdictions are largely autonomous, with no central storehouse for information, said Adrienne Wheeler, executive director of the Justice & Accountability Center of Louisiana, a group that has worked to make expungement more accessible.  Further, the justice system — from the state police to sheriffs’ departments as well as district attorneys and court clerks — are underfunded and depend on fines to make up for the tax dollars they don’t receive.  “We were pretty vocal that this was an impossible cost,” said Wheeler of recent reform discussions. But, she said, “These agencies are not getting the funding that they need to function, so it’s hard to ask them to bring it down.”

In Tennessee and Kentucky, bloated prices have little to do with processing the application, but rather the state revenue they were designed to produce.  Fifty-five percent of the cash collected in Tennessee goes into the state’s general fund.  In Kentucky, it will be a full 90 percent. The prospect of revenue is exactly why Tennessee lawmakers were persuaded to pass felony expungement legislation in 2012, said State Representative Raumesh Akbari, a Democrat.  At the time, the official estimate was that the law would raise $7 million for the state annually. In reality, it has generated only about $130,000 each year according to an analysis by a criminal justice nonprofit, Just City. The lack of income is tied to the fact that few would-be applicants can afford to apply, Akbari said.

Public awareness of the issue is gaining momentum in Tennessee. At a fundraising event in February, Memphis Mayor Jim Strickland raised $55,000 in private donations to cover the cost of expungement for indigent applicants.

June 1, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (4)

Tuesday, May 31, 2016

Is "geography" really an "arbitrary feature" of a capital prosecutions?

The question in the title of this post is prompted by this passage today in Justice Breyer's dissent from the denial of certiorari in Tucker V. Louisiana (with my emphasis added):

Lamondre Tucker shot and killed his pregnant girlfriend in 2008.  At the time of the murder, Tucker was 18 years, 5 months, and 6 days old, cf. Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”), and he had an IQ of 74, cf. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (execution of the intellectually disabled violates the Eighth Amendment). Tucker was sentenced to death in a Louisiana county (Caddo Parish) that imposes almost half the death sentences in Louisiana, even though it accounts for only 5% of that State’s population and 5% of its homicides. See Pet. for Cert. 18.

Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography.  See Glossip v. Gross, 576 U. S. ___, ___–___ (2015) (BREYER, J., dissenting) (slip op., at 12–14).  One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row.

I do not dispute that Tucker might not have been sent to death row if he had committed the same murder, and had been tried and sentenced, in another county. Indeed, one can certainly assert that had Tucker committed the same murder in, say, Michigan, a state without te death penalty, he definitely would not be on death row.  But, I do not think it quite right to call this geographic reality "an arbitrary feature of his case."  Arbitrary means "not based on reason," but there are many (seemingly sound) reasons why geography often will define and influence how a capital prosecution proceeds.

Most obviously, a criminal being capitally prosecuted has generally picked where his murder took place, and he typically will be (and some times only can be) prosecuted in a particular locality due to his own homicidal choices.  Moreover, the locality where a murder is committed necessarily experiences the impact of the crime most directly, and local decision-makers ought to be most responsive to local concerns as to how best to respond to that murder.  And, a locality's prosecutors and judges and jurors have all been selected to be respresentative of local community views and judgments.  (Indeed, in his concurring opinion in Ring v. Arizona, Justice Breyer made much of a "community’s moral sensibility" in the resolution of capital cases and the importance of a jury's role in reflecting "a community’s sense of capital punishment’s appropriateness in a particular case.")

In other words, to parrot a newly popular SCOTUS term, I think it is nonsense to call geography an "arbitrary feature" of a criminal case. And while lots of abolitionists complain about the impact of geography on the adminstration of capital punishment, I have never found this complaint to be conceptually convincing or nearly as compelling as other arguments against the modern administration of the death penalty.

May 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

"Marijuana Enforcement Disparities In California: A Racial Injustice"

The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:

Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction.  Subsequently, misdemeanor marijuana arrests plummeted by 86 percent.  Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher.  This can be a substantial burden for young and low-income people.  According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....

Infraction data are hard to come by in California.  The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys.  In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.

These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough.  There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys.  While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.

Cross-posted at Marijuana Law, Policy & Reform

May 31, 2016 in Data on sentencing, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Highlighting just some of the ways that "Democratic Leadership Is Missing In Action on Mass Incarceration"

Election_donkey3The quoted portion of this post's title comes from this new commentary at The Nation authored by Inimai Chettiar and Ames Grawert. The piece carries the subheading "Sentencing reform will be a compromise between moderate and conservative Republicans, unless Democrats finally come to the table," and here are extended excerpts:

Even though it now looks like Americans will be deprived the drama of a contested Republican convention, the gathering in Cleveland could hold at least one surprise.  The Republicans are set to vote on an RNC resolution to reduce mass incarceration.  The measure asks for “reforms for nonviolent offenders at the state and federal level” and urges “state legislators and Congress to…provide substance abuse treatment to addicts, emphasize work and education, and implement policies that cut costs while obtaining better outcomes.”

Finally, Democrats may say, Republicans have woken up to mass incarceration as a 21st-century civil-rights struggle, joining what has for years been a progressive fight.  Not so fast. If the Republican Party makes criminal justice reform a priority, they’ll be the first major party to do so, ever.  Democrats need to catch up. Adding ending mass incarceration to their own platform would mark a significant step, boldly breaking with their past politics.

So what have the Democrats said about criminal justice?  Recent Democratic platforms haven’t merely been silent; they have actually called for policies creating more imprisonment, and then applauded the result.  Mentions of progressive alternatives are hard to find.

In 1992, Democrats supported alternatives to incarceration, such as “community service and boot camps for first-time offenders.” But four years later the platform went in the opposite direction. It praised mandatory “three-strikes-you’re-out” laws, truth-in-sentencing provisions that limited earned early release, and “$8 billion in new funding to help states build new prison cells.”  At the turn of the century, the party still championed “tougher punishments” as a way to fix “an overburdened justice system that lets thugs off easy,” and applauded federal funding for “new prison cells” as a major success story (a clear nod to the 1994 Crime Bill, which paid states to increase imprisonment).

More recently, in 2008 and 2012, the DNC approved language supporting “local prison-to-work programs” aimed at “making citizens safer and saving the taxpayers money,” and noting the importance of “fight[ing] inequalities in our criminal justice system.” But neither platform made any mention of sentencing reform, or reducing the number of criminal laws, even as the US incarceration rate topped the world and some states reversed course on their “tough-on-crime” policies.

This year’s Democratic presidential candidates have broken with this legacy. Both Hillary Clinton and Bernie Sanders have prominently featured prison reform in their campaigns and vocally noted that the 1994 Crime Bill, which they both supported, went too far.

Yet Democrats still lag behind. Today’s movement to end mass incarceration has largely been led by Republicans. If the federal Sentencing Reform and Corrections Act passes Congress, advocates will have Republican Senators Mike Lee (Utah) and John Cornyn (Texas) to thank for courting support for the bill and hammering out compromises with the party’s most conservative members. At the state level, Republican Governors Rick Perry in Texas and Nathan Deal in Georgia fought for and signed laws that led to sharp reductions in the prison population. In Ohio, Governor John Kasich championed and signed legislation in 2011 to expand the use of treatment in lieu of prison.

In announcing the Republican National Committee resolution to end mass incarceration, RNC member Tom Mechler claimed that “Republicans are the ones that have taken the lead on this.” That’s no idle boast — he’s right. So where are the Democrats?

A few Democrats have stepped up to champion the cause, such as Senators Dick Durbin, Corey Booker, and Patrick Leahy. But the senior party leadership — Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz — have largely been mum. Other influential party voices, including Elizabeth Warren and Chuck Schumer, have done the same. To be sure, Democrats may still be haunted by the ghost of Willie Horton and the fear of being branded as “soft on crime.” And some may believe that stoutly maintaining a belief in “law and order” will secure votes.

But times have changed. Now Democrats can point to Republicans such as Lee, Cornyn, Perry, and Kasich. Even law enforcement supports reform. These conservative voices now give Democrats cover to come out strongly on the issue. And, in the wake of a national protests to reform policing, Clinton and Sanders have energized parts of Democratic electorate — African-American communities and white liberals alike — on the issue. The consensus to reduce unnecessary imprisonment has arrived. But we will never see true reform until Democrats provide a solid left flank, so that compromise lands at the center, instead of to the right.....

Criminal justice reform should be a simple step for a party that believes in progress, equality, and inclusion. It was the Democrats who fought for civil rights in the last century. If the Democrats do not raise their voice, history will record that it was the Republicans who led the civil-rights struggle in this one.

Though I am pleased to see this piece calling out failings of Democratic Party leaders like Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz, this commentary still strikes me as many days too late and many dollars short. First and foremost, where is the needed criticisms of the Clintons and the Obamas, who are and seem likely to remain for some time the four most important Democratic leaders? Regular readers know I lay particular blame on the Clintons not only for consistently moving to the right on criminal justice issues for crass (and racialized) political benefits in the 1990s, but particularly for not being involved in helping to swinging the pendulum back when mass incarceration became an obvious problem in the following decade and Justice Reinvestment movements could have used an extra boost from the mainstream left. But I also blame the Obamas: the Prez (and lawyer and constitutiuonal scholar) certaintly could have and should have invested more time, energy and political capital on an array of "low-hanging" federal sentencing reform opportunities during his first Term; the First Lady (also a lawyer) perhaps could have and should have incorporated discussion of criminal justice reform into her advocacy for healthy families, service members and their families and higher education.

Second, as especially critical right now, this piece (and many others) ought to be aggressively attacking Prez Obama and other Democrats for being resistent to the federal mens rea reform that Republicans want to see included in sentencing reform efforts. I continue to be both annoyed and deeply disappointed that an issue like mens rea reform, which should be a cause championed by true liberals, has become a critical impediment to getting a sound and needed federal sentencing reform bill through Congress. I have long suspected and feared that sentencing reform would not get done this year absent Prez Obama and other Democrats being willing to work toward sound and needed mens rea reform, and yet it does not appear any real efforts are being made by anyone on the D side of the aisle.

And do not get me started on the failure of federal Democratic Leadership to see the extraordinary opportunities that state-level marijuana reforms has created in recent years for remaking the modern federal war-on-drugs narrative.  As long time readers may know, I consider effective federal and state marijuana reforms to be a critically important front in the battle against mass incarceration, and one that should have even more long-term potential and impact than modest federal sentencing reforms discussed in Congress.  But, short-sighted and fixed in their own dated views of political realities, establishment Democrats have now an impressively long record of mistakes and missed opportunities in this arena.  Sigh.

May 31, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (8)

SCOTUS order list inclludes a couple notable criminal appeal summary reversals

The Supreme Court returned from the long weekend with this long order list, which includes a few long per curiam decision in an habeas case from the Ninth Circuit (Johnson v. Lee) and a capital case from Arizona (Lynch v. Arizona). In addition, the Court denied cert in Tucker v. Louisiana, a case in which the constitutionality of the death penalty was directly challened and Justice Breyer (joined by Justice Ginsburg) dissented in an opinion that calls again for taking up this question.

Notably, the Ninth Circuit (and the criminal defendant) is the loser in Lee, whereas the capital defendant prevails in Lynch.  There was not dissent from the ruling in Lee, but Justice Thomas (joined by Jusice Alito) dissented from Lynch.

May 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution

As noted in this prior post, last week federal prosecutors finally decided that they will seek the death penalty for racist mass murderer Dylann Roof.  That decision, as reported in this recent local article, now creates some novel issues in light of South Carolina's parallel capital prosecution plan.  The article, headlined "Dylann Roof prosecution entering ‘uncharted waters’ of legal history," includes these passages:

Authorities will have two chances to see that Dylann Roof meets the same fate as his victims.

But never in modern times have both state and federal prosecutors sought someone’s execution at the same time. How they will manage two death penalty cases could break legal ground and offer some lessons.

“We are in completely uncharted waters,” said Chris Adams of Charleston, an experienced capital defender. “The federal government’s decision (to seek the death penalty) creates many more questions than it does answers.”...

Scheduled for Jan. 17, the state’s trial is on a faster track. Wilson also sent a letter to [U.S. District Judge Richard] Gergel, asking him to set the federal trial later. The judge could finally set a trial date at a June 7 hearing.... The possibilities are daunting. “It just creates logistical chaos,” Adams said. Officials must sort out subpoenas being filed in two different courts, he said. Prosecutors in each case also must give the defense all exculpatory evidence, or information used to fend off a guilty verdict or to mitigate a sentence. If some evidence is missed in the first trial only to be discovered when it’s turned over in the second trial, that might be grounds for an appeal in the first...

State and federal authorities rejected Roof’s offer to plead guilty and serve life in prison. “Now what we’re going to have is ... possibly two very public, very painful trials and unquestionably a decade of appeals,” [DPIC executve director Robert] Dunham said. “The families will have to deal with Dylann Roof getting all the attention.” But Dan Simmons Jr., whose father was slain in the attack, said prosecutors have made him well aware of that. The Virginia resident has attended most hearings in the two courthouses that sit across the street from each other. “It’s been more than overwhelming,” he said. “But it’s not an overnight thing. ... It’s going to open up some wounds. But we will endure.”...

The state ran out of its supply of the fatal drug [used in executions] in 2013. Citing ethics, all major manufacturers have cut off the states, whose stashes soon expired or were seized as illegal imports. And the federal government has been reviewing its injection methods since 2010, effectively halting executions. There is no indication that either government is in a better position to obtain the supplies now, Dunham said. State prisons spokeswoman Stephanie Givens said, “Officials continue to research solutions and alternatives but have been unsuccessful in acquiring lethal injection drugs.” So even if a jury condemns Roof to death, experts said, the 22-year-old could live a long life in prison — unless he voluntarily opts for South Carolina’s alternative execution method: the electric chair.

I cannot at this point resist highlighting that I flagged the possibility of a double capital prosecution in this post about the case back in June 2015.

A few prior related posts:

May 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)