Saturday, September 22, 2018

"Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty"

The title of this post is the title of this new article on SSRN authored by Vanessa Edkins and Lucian Dervan.  Here is its abstract:

With a criminal conviction comes numerous restrictions on rights, and often these collateral consequences are not adequately communicated to a defendant accepting a plea deal. The question we posed was whether informing individuals of collateral consequences would alter their decisions to plead.  Using prospect theory (Kahneman & Tversky, 1984) and the theory of temporal discounting (Ainslie, 1975), we hypothesized that the delayed nature of collateral consequences — especially if the consequences were competing with overly enticing immediate rewards to accepting a plea deal, namely the ability to be released from pretrial detention — would not have the desired effect of exerting a strong influence on decisions to plead.

Across two studies — the first, an exploratory within-subjects design; the second, a more controlled between-subjects design — we found that while actual guilt mattered the most with regard to decisions to plead, pretrial detention also weighed heavy (especially influential in challenging our innocent participants’ steadfastness to hold out for a trial). Collateral consequences did not have as large of an impact, especially if pretrial detention was involved.  We also saw that, in general, participants were not opposed to the imposition of most collateral consequences.  Future directions for plea bargaining research are discussed.

September 22, 2018 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, September 21, 2018

Why is the Sessions' DOJ now taking death penalty off the table for Donald Fell after so much cost and agony for victims?

The question in the title of this post emerges from this notable federal capital news, headlined "Accused killer Donald Fell to take plea deal, avoid death penalty," emerging from Vermont in a long-running multiple murder case.  Here are the basics:

Nearly 20 years after he allegedly kidnapped and murdered a Vermont grandmother, accused killer Donald Fell is changing his plea and will avoid the death penalty.

Terry King, 53, was arriving for work at the Rutland Price Chopper in 2000 when police say Donald Fell and Robert Lee carjacked her, drove her to New York and killed her on the side of the road.

Fell was convicted and sentenced to death in 2005.  But his federal conviction was overturned due to juror misconduct and a new death penalty trial was set to begin.

But now there is a plea deal that takes the death penalty off the table. Court documents show Fell will plead guilty to four federal crimes, including carjacking and kidnapping with death resulting. In exchange, he will spend the rest of his life in prison without the possibility of parole.  A judge must still accept the agreement.

Fell's alleged accomplice, Robert Lee, never stood trial. He killed himself in prison. Fell and Lee were accused of two other murders that night. Police say before kidnapping Terry King, the men murdered Fell's mother, Debra, and her friend, Charles Conway in Rutland. But those killings took a back seat to King's murder because the feds were charging the men in that case since they brought King across state lines. The feds also had the death penalty to bargain with. The state of Vermont does not have a death penalty.

As highlighted via prior posts below, Fell's legal team has been making an aggressive case against his continued capital prosecution.  But I sincerely doubt federal prosecutors found any of their claims compelling or really worried that federal judges would.  So I am inclined to assume that federal prosecutors just concluded, presumably with the blessing of Attorney General Jeff Sessions, that throwing more federal taxpayer dollars after the pursuit of federal death sentence was just not a good investment of limited resources (perhaps especially because the feds have not executed anyone in over 15 years).

That all said, I still find this decision especially striking because the victims here are vocally against this plea resolution.  This local article, headlined "Victim's family says justice not served with Fell plea deal," explains the family's reaction while also suggesting federal prosecutors had to work had to talk them into being content with this resolution:

The family of Terry King says justice is not being served. That's their response to news a plea deal has been reached with King's accused killer, Donald Fell. The deal means Fell will avoid the death penalty. "I mean they beat her to death. Beat her to death while she prayed for her life. And yet he is allowed to live? What justice is that?" demanded Barbara Tuttle, Terry King's sister.

Tuttle is talking about Donald Fell, the man accused of the brutal murder of Terry King. The North Clarendon grandmother was kidnapped on her way to work back in 2000. "It is a total embarrassment for the U.S. government as far as I am concerned, a total embarrassment," Tuttle said. And King's sister says she speaks for the entire family....

"If you are going to have the death penalty, then enforce it. If you are not going to use it, then why is the law there? Why all these appeals over and over and over again? Eighteen years of this," Tuttle said.

Tuttle says her family has known a plea deal was in the works for several weeks. Under the deal, Fell will plead guilty to four federal crimes including carjacking and kidnapping with death resulting.  Tuttle says her family was convinced by prosecutors it was the best way to go to avoid another lengthy trial and appeal process.  "I would just as soon go to court all over again if I knew that he would come out with the death penalty.  And it was actually be enforced and we wouldn't have to go through 18 more years of appeals," she said. "It is ridiculous."

Tuttle says at least she won't have to keep being reminded of the case once Fell is sentenced to life without parole. She hopes if any good can come of the story, maybe it can lead to changes in the system. "They are always talking about criminal justice reform. Let me tell you, this is a perfect example of why our system is broken," she said....

It is important to note that a federal judge still needs to approve this deal. The case goes back to court Sept. 28.

I doubt the family member speaking here would be content with abolition of the death penalty as a way to fix this part of a broken capital criminal justice system. But I find it so telling that the "tough-and-tougher" federal administration that Prez Trump advocates and that AG Sessions seeks to implement ultimately gave up here on what should not be a uniquely hard capital prosecution.  Another notable data point to support the view that the long-running litigation war against the death penalty is ever closer to a complete victory.

Prior related posts:

September 21, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, September 20, 2018

"Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"

The title of this post is the headline of this lengthy New York Times review of the high-profile sentencing set to take place at the start of next week. The article includes some original analysis of Pennsylvania sentencing outcomes, and here are some excepts that should be of interest to sentencing fans:

When Bill Cosby arrives at the Montgomery County Courthouse next week to be sentenced for sexual assault, he will find out whether prison is the final stop on his descent from beloved entertainer to disgraced felon. But the judge making that decision, Steven T. O’Neill, will confront his own personal pressures, weighty expectations and knotty legal challenges. Chief among them: What to do with an 81-year-old sex offender who could become one of the most famous Americans ever to enter a cell?

At a time when the country is finally reckoning with a culture of predatory sexual abuse by powerful men, Judge O’Neill is likely to survey a courtroom in Norristown, Pa., that is filled with many of the dozens of women who say Mr. Cosby drugged and assaulted not just Andrea Constand, but them, too. A large number of these women expect a long prison sentence, one that will put an exclamation mark on the first major conviction of the #MeToo era.

“My wound was greatly healed by the guilty verdict in the spring,” said Lili Bernard, an actress who says that Mr. Cosby drugged and raped her in the early 1990s. “But to see him in handcuffs, that would be like, ‘Wow.’ We, the victims, deserve that.”

Prosecutors have said they will push for the maximum 30-year prison term: 10 years on each of three counts of aggravated indecent assault. But Mr. Cosby’s lawyers are sure to fight that, depicting him as a frail old man with failing vision, incapable of assaulting another woman or surviving a long sentence.

And Judge O’Neill will have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. A New York Times analysis of Pennsylvania court data for the past five years found that offenders convicted of crimes similar to Mr. Cosby’s often did not receive the maximum penalty, but were more typically given sentences of two to five years....

Mr. Cosby’s spokesman, Andrew Wyatt, confirmed that Mr. Cosby would appeal his conviction, but declined to specify on what grounds.... Mr. Wyatt said Mr. Cosby would ask to remain free on bail, post-sentencing, while he pursues his appeal, a process that could take years. If Judge O’Neill were to allow that, he would surely face criticism from the many female accusers looking to find closure in the case.

“We will all feel very let down by that,” said Victoria Valentino, a former model for Playboy who says Mr. Cosby drugged and raped her in Los Angeles in 1969....

Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, among other conditions, it demonstrates a signature pattern of abuse. But its inclusion is extremely rare, and Judge O’Neill never explained why he allowed the five additional women to testify in the trial this year after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That ended in a mistrial after the jury failed to reach a verdict. “The No. 1 issue is definitely that big change, of letting in those additional complainants in the case,” said Shan Wu, a former sex-crimes prosecutor in Washington. “I am sure that Cosby’s team are licking their chops.”

Experts say judges are often more lenient about bail in cases where the appeal issues are viewed as strong. “When someone has a legitimate issue,” said Brian Jacobs, a former federal prosecutor in New York who has studied the topic, “and there’s an argument that certain evidence should not have been allowed that could reduce the chance of a conviction at retrial, then there is an interest in allowing that person to stay out on bail.”

Mr. Cosby, who has denied sexually abusing any of the women, is currently free on $1 million bail, though he is confined to his suburban Philadelphia home and has to wear a GPS monitoring device. After Mr. Cosby’s conviction, prosecutors had immediately asked for his bail to be revoked, but Judge O’Neill said he did not view Mr. Cosby as a flight risk, one of the criteria weighed in such a decision. Legal experts said it was generally uncommon in Pennsylvania for offenders to be allowed to remain free on bail, pending appeal, after a judge had sentenced them to incarceration.

Mr. Cosby was convicted on these three counts: penetration with lack of consent, penetration of the victim while she was unconscious, and penetration after administering an intoxicant. The New York Times reviewed state sentencing data for 121 cases over the past five years in which the most serious conviction was for at least one of those three counts. Mr. Cosby is far older than all of the others convicted. Their median age was 36, though in a few cases, the offender was in his late 60s.

A vast majority of the offenders also received fewer than 10 years, with a median sentence of two to five. But there were several cases in which judges gave maximum sentences of 20 years or more to offenders who had been convicted on multiple counts of aggravated indecent assault, or a single count in tandem with other, lesser crimes.

In some of those cases, the judge eschewed a common practice of making multiple sentences concurrent and instead ruled that they be served consecutively. In another case, the person qualified for a more severe sentence because he was viewed as a repeat offender under Pennsylvania’s sex offender laws.

Mr. Cosby had never before been convicted of a crime, and his team is expected to argue that his three counts should be merged into a single count, a decision that would mean that he would face a prison term of no more than 10 years.

Prosecutors have asked that an unspecified number of women who have accused Mr. Cosby of sexually assaulting them be allowed to testify at the sentencing hearing, a move that one of Mr. Cosby’s lawyers, Joseph P. Greene Jr., is trying to block. But Ms. Constand will certainly be allowed to speak at the hearing, as will Mr. Cosby, if he so chooses. The person being sentenced usually has the last word.

Mr. Jacobs, the former federal prosecutor, said that even if none of the other women were allowed to speak, he had to believe that the number of accusers who say Mr. Cosby preyed on them for decades would be an important factor in Judge O’Neill’s thinking. One purpose of sentencing in such a high-profile case can be to send a message that might deter others, he said. “The judge would have to be conscious of the fact that this is one of the earliest sentences in the Me Too era,” Mr. Jacobs said.

Judge O’Neill declined to comment for this article. But Dennis McAndrews, a Pennsylvania lawyer who has known the judge since they attended Villanova University School of Law together, said he did not expect Judge O’Neill to have any problem navigating the maze of factors in this sentencing. “He has been a judge for 14 years,” Mr. McAndrews said, “and in terms of experience and temperament, he has got all the tools necessary to assimilate and synthesize every piece of information that will come before him.”

Prior related posts:

September 20, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, September 18, 2018

Previewing the two capital punishment administration cases before SCOTUS this fall

Garrett Epps has this lengthy new commentary at The Atlantic under the headline "The Machinery of Death Is Back on the Docket: Two Supreme Court cases this fall pose hard questions about the death penalty." Here are some excerpts:

Madison v. Alabamato be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”...

[Vernon] Madison’s legal team — led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.” 

Alabama’s response is that the goals of capital punishment — retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.

The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.

In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders.... Bucklew doesn’t contest his guilt, nor does he claim that Missouri’s lethal-injection protocol is in itself “cruel and unusual.” His is what lawyers call an “as applied” challenge. What that means is this: Though lethal injection may pass muster for most executions, he argues, in his individual case, because of his unusual physical condition, the injection will cause him intense and intolerable pain.

He suffers from a rare medical condition call cavernous hemangioma. The condition has given rise to multiple blood-filled tumors in his head and mouth. These make it difficult to breathe and are prone to bloody rupture. He must sleep sitting up to avoid choking on his own blood. Being strapped flat to a gurney will subject him to suffocation, he argues. In addition, since his blood vessels are affected, he says, those administering the drugs will probably have to use a lengthy and painful procedure called a “cutdown” before the drugs can be administered, prolonging the agony....

Bucklew did offer an alternative already provided in Missouri law — a gas chamber filled with nitrogen gas, which would render him unconscious and then dead without the agony of suffocation.  The Eighth Circuit said that he did not prove the gas chamber would be better.  The court below had heard from two expert witnesses — one who described the agony of lethal injection and another who stated that gas would kill him more quickly.  A trial court could compare the two descriptions and reach its own conclusion about relative agony.  Not good enough, said the appeals court; Bucklew was required to provide one expert who would offer “comparative testimony” — in effect, a single witness to say that one method is less cruel than another....

The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing. As the population of death row ages, issues of age-related disease and dementia will become more important in assessing individual death warrants, and the court will be the last stop for those challenged.

The court seems likely to be hostile to prisoners’ claims, however.  In recent years, when the high court stepped in to halt executions, Justice Anthony Kennedy was usually the deciding vote. Kennedy will almost certainly be replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His conservatism in general, however, is orthodox, and conservative orthodoxy is hostile to new claims that executions are “cruel and unusual.”

September 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, September 17, 2018

SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"

Guest-postsI am very grateful that Wayne Logan, the Gary & Sallyn Pajcic Professor of Law at Florida State University and the author of Knowledge as Power: Criminal Registration and Community Notification Laws in America (Stanford Univ. Press, 2009), reached out to offer me an original commentary on a case to be heard by the Supreme Court next month.  Here it is:

Herman Gundy, convicted of providing cocaine to a young girl and raping her, is a decidedly unlikely emissary in conservatives’ campaign to dismantle the administrative state.  In Gundy v. United States, to be argued the first week of the Supreme Court’s coming term, the Justices will address whether Congress violated the “non-delegation doctrine” when it directed the U.S. Attorney General to decide whether the federal Sex Offender Registration and Notification Act (SORNA) should apply to individuals convicted before its 2006 enactment.  Gundy, whose rape conviction was in 2005, has a dog in the fight because the attorney general made SORNA retroactive, and Gundy was convicted of a felony under SORNA after he traveled interstate in 2012 without informing authorities.

The Court’s decision to hear Gundy’s case came as a major surprise.  The Justices have not invalidated a congressional delegation in over eighty years and all eleven federal appellate courts addressing the issue have concluded that the delegation was proper.  At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.

If this occurs, it would be ironic.  Conservatives usually tout people like Gundy as poster boys for tough-on-crime policies, such as SORNA, which was enacted by a Republication Congress, signed into law by Republican President George W. Bush, and made retroactive by his attorney general (Alberto Gonzales).  Meanwhile, liberals, often fans of the administrative state, in areas such as environmental protection and workplace safety, tend to voice concern over such heavy-handed criminal justice initiatives.

On the merits, Gundy appears to have a strong claim.  For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application.  With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.

Whether SORNA should apply retroactively is the kind of basic policy question that democratically accountable members of Congress should decide.  But they punted, for obvious political reasons.  The House and Senate could not agree on retroactivity and, when states later provided the attorney general input on SORNA’s possible retroactivity to their own registries, many vigorously objected to retroactivity.

Regardless of whether registration and notification actually promote public safety, which research has cast doubt upon, federal policy on the issue has long been marked by overreach.  Since 1994, when Congress first began threatening states with loss of federal funds unless they followed its directives, federal involvement has rightly been viewed as both foisting unfunded mandates upon states and a ham-fisted effort to policy-make in an area of undisputed state prerogative: criminal justice policy.

When Gundy is argued and decided Justice Neil Gorsuch will likely play a key role.  As a member of the Tenth Circuit Court of Appeals, then-Judge Gorsuch wrote a lengthy dissent from his colleagues’ refusal to reconsider en banc their decision that the SORNA delegation was proper.  Gorsuch advocated a requirement of heightened guidance in criminal justice delegations, justified by the unique “intrusions on personal liberty” and stigma of convictions.  There is considerable appeal to Justice Gorsuch’s view, which the Court itself suggested in 1991.  Moreover, unlike other policy areas, such as environmental quality and drug safety, criminal justice typically does not require scientific or technical expertise, lessening the practical need for delegations in the first instance.

Ultimately, the Court might conclude, with justification, that the SORNA delegation was invalid because it lacked any “intelligible principle.”  On the other extreme, as Justice Thomas might well urge, the Court could outlaw delegations altogether.  Chief Justice Roberts, in a dissent joined by Justice Alito, recently condemned the “vast power” of the administrative state, and Court nominee Judge Brett Kavanaugh has signaled similar antipathy.  Meanwhile, it is hard to say how the Court’s liberals will vote, given the conflicting interests at work.  Time will tell how the dynamic in Gundy plays out but the uncertainty itself provides yet more evidence of the high stakes involved in filling the Court’s current vacancy.  

September 17, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, September 16, 2018

"A Defense of Modern Risk-Based Sentencing"

The title of this post is the title of this new paper authored by Christopher Slobogin now available via SSRN. Here is its abstract:

In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public.  In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk.  This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles — the fit, validity and fairness principles — that should govern their use.  It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy.

Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing.  More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought.  The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.

September 16, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, September 15, 2018

"A Reparative Approach to Parole-Release Decisions"

The title of this post is the title of this paper authored by Kristen Bell recently posted to SSRN. Here is its abstract:

Scholars have argued for enhanced procedural protections at parole hearings, but for the most part without a focus on what substantive criteria ought to guide parole-release decisions.  I undertake this normative project, first describing the approach to parole-release decision criteria from the perspective of four standard theories of punishment: retributive theory, deterrence theory, rehabilitation theory, and communicative theory.  I argue that each of the respective criteria flowing from these theories of punishment is morally objectionable on two grounds: failure to respect the agency of prisoners, and failure to take seriously the limits of our knowledge.  After setting forth these theories and the objections to which they are subject, I turn to draw lessons from how California’s parole-release system functions in practice.

Drawing on both the theoretical and practical perspectives on parole-release criteria, I argue in favor of a fundamental change.  I propose a “reparative approach” that builds on aspects of restorative justice and takes seriously respect for the moral agency of prisoners, victims, and the broader political community.  On this approach, people directly affected by the crime join with others at the outset of a prisoner’s sentence to deliberate and decide upon reasonably achievable criteria that the prisoner would need to meet in order to be released.  At the end of the prisoner’s judicially prescribed period of incarceration, the release decision would then be a ministerial determination of whether the prisoner has in fact met the criteria that were decided upon at the outset.  I leave for future work the question of whether and how such a policy could be implemented in the context of the contemporary American criminal justice system.

September 15, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Reviewing the continued ugly realities of the application of the Armed Career Criminal Act

Running this week at The Appeal is this notable piece with stories and data on the application of the federal Armed Career Criminal Act.  The piece is headlined in full "Man Sentenced As ‘Career Criminal’ Gets His First Chance At Freedom In 48 Years: Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief." I recommend the piece in full, and found this data discussion especially interesting:

A run of Supreme Court decisions capped by the 2015 ruling brought relief to some prisoners who were sentenced under ACCA.  The ruling found part of the act to be unconstitutionally vague — it wasn’t clear what qualified a defendant as a “career criminal.” The decision made hundreds of prisoners serving ACCA-enhanced sentences eligible for resentencing.

The Supreme Court limited the prior convictions that qualified a person for sentencing under the act. It did not eliminate prosecutors’ ability to seek ACCA-enhanced sentences, and U.S. attorney’s offices in a handful of jurisdictions continue to regularly use the enhancement against defendants with prior convictions for drug dealing and qualifying violent crimes....

Three years after the Supreme Court decision, prosecutors continue to use ACCA mandatory sentences in patterns that vary significantly from state to state. Whether a defendant faces an ACCA sentence depends on who is prosecuting.  Prosecutors in California won just one ACCA sentence in 2016, while New York had only two prosecutions.  Florida had 61; Missouri had 29 and Tennessee had 26.  Washington state had one ACCA prosecution in 2016.

“It is incredibly arbitrary,” said Molly Gill, vice president for policy at FAMM, an advocacy organization opposed to mandatory sentences.  “One of the ideas behind mandatory minimums … is that they increase the certainty of punishment,” Gill told The Appeal. “When you look at how the law’s applied, that’s really not true.”

Black defendants are far more likely to receive ACCA-enhanced sentences.  According to U.S. Sentencing Commission statistics, 70 percent of defendants sentenced under the act in 2016 were Black.  Whites, who outnumbered Black defendants that year, accounted for 24 percent of ACCA-enhanced sentences.

Severe sentences and mandatory minimums have long been faulted as unnecessary; the U.S. Sentencing Commission found them onerous and inconsistently applied. They also deliver a compelling advantage to prosecutors during negotiations.

Questioning the government during oral arguments in Johnson v. United States, the case that resulted in the 2015 ruling, Chief Justice John Roberts commented that defendants facing a 15-year minimum will take a deal. “You said … because there are so many years involved, people will litigate hard,” Roberts remarked to Deputy Solicitor General Michael Dreeben during the April 2015 hearing.  “I think because there are so many years involved, people won’t litigate at all. … It gives so much more power to the prosecutor in the plea negotiations.”

About 97 percent of defendants convicted in federal court plead guilty prior to trial. Though ACCA sentences have been declining in recent years, 304 people were sentenced under the act in 2016.

September 15, 2018 in Data on sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (3)

Friday, September 14, 2018

Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions

Politico has this extended article with some of the details of the plea deal completed today between the federal government and Paul Manafort.  Here are excerpts with an emphasis, of course, on sentencing particulars:

President Donald Trump's former campaign chairman Paul Manafort has agreed to cooperate with special counsel Robert Mueller under a plea agreement revealed Friday. Manafort appeared in a Washington, D.C., courtroom Friday morning, looking relaxed in a suit and purple tie, to formally announce the deal.

The deal dismisses deadlocked charges against Manafort from an earlier trial, but only after "successful cooperation” with Mueller’s probe into Russian election interference and whether the Trump campaign coordinated with Moscow on its efforts. Later, U.S. District Court Judge Amy Berman Jackson said Manafort is agreeing to "cooperate fully and truthfully" with the investigation.

The agreement also calls for a 10-year cap on how long Manafort will be sent to prison, and for Manafort to serve time from his separate Virginia and Washington cases concurrently.  But it will not release Manafort from jail, where he has been held since Mueller's team added witness tampering charges during the run-up to the longtime lobbyist's trial.

Manafort addressed Jackson in a soft voice, saying “I do” and “I understand” as she asked him whether he understood what rights he’s giving up. “Has anybody forced you, coerced you or threatened you in any way?” she asked later. “No,” Manafort replied, in a barely audible voice. A deputy marshal stood directly behind Manafort, a reminder that he remains in custody.

Legal experts quickly spun the deal as a win for all the parties involved. Manafort gets a potentially shorter sentence and lessens his legal bills. Trump avoids several weeks of bad headlines ahead of the midterm elections about his corrupt former campaign aide. And Mueller — faced with Trump's constant claims that his probe is a witch hunt — gets to show yet again that his charges are not fabricated and can now divert resources to other elements of his Russia probe....

Trump’s personal attorney Rudy Giuliani insisted the president and his lawyers were not concerned about Manafort cutting a deal. "Once again an investigation has concluded with a plea having nothing to do with President Trump or the Trump campaign," he said in a statement Friday. "The reason: the President did nothing wrong."

White House press secretary Sarah Huckabee Sanders echoed those remarks in her own statement. "This had absolutely nothing to do with the President or his victorious 2016 Presidential campaign," she said. "It is totally unrelated.”

Prosecutors signaled the pending deal Friday morning, filing a new slimmed-down set of charges against Manafort, reining in the felony counts pending against him in D.C. from seven to just two: conspiracy against the U.S. and conspiracy to obstruct justice....

Last month, a jury in Alexandria, Virginia, convicted Manafort on eight felony charges in a tax-and-bank-fraud case also prosecuted by Mueller’s team. The jury deadlocked on 10 other counts, but a verdict form said the jurors were split, 11-1, in favor of conviction on those charges.

Many Trump aides and advisers have said they believe the president is likely to grant Manafort a pardon on all the charges, which Trump has suggested amounted to prosecutorial overkill aimed at persuading Manafort to implicate Trump in wrongdoing in connection with the ongoing Russian investigation.

The charges filed Friday morning came in a criminal information replacing the current indictment in the Washington-based case against Manafort.  The new charges mean that prosecutors have agreed to drop five counts, including money laundering, failing to register as a foreign agent and making false statements. Manafort admitted to those allegations as part of the umbrella conspiracy-against-the-U.S. charge, but the individual charges and the potential prison time they carry are being dismissed.

Weissmann said Manafort is admitting to all of the bank-fraud charges from the Virginia case. While that means Manafort won’t face another trial over those federal charges, the admission could be critical to the issue of follow-up state charges, since bank fraud can typically be charged at the state and federal level.

Without seeing this plea agreement, it is unclear to me whether Manafort now has his sentencing exposure capped at 10 years for all of his convictions or just for those related to the second round of DC charges to which he today pleaded guilty.   I presume the latter, since I am not sure a DC-based plea deal could bind the sentencing discretion of the Virginia-based judge who will be sentencing Manafort on the charges which resulted in jury convictions last month.  The plea agreement could include, however, a representation by federal prosecutors that they will not seek a sentence longer than 10 years in the other part of the case (though I doubt it does).

Of course, the sentencing particulars could become academic if (when?) Prez Trump were to grant Manafort a pardon (which he could do at any time).  As of this writing, I am inclined to predict that Prez Trump will commute Manafort's sentence to reduce how long he spends in prison (rather than grant a full pardon), and do so sometime after the mid-term elections.  We might call this the "Libby treatment" as this is how Prez George Bush used his clemency powers to help our Scotter Libby after his perjury conviction but before he was sent to the federal penitentiary.  (And if Prez Trump was clever and savvy in this arena, he could and would include a commutation for Manafort within a list of dozens or hundreds of other commutations of "regular" offenders.)

September 14, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Marijuana, mandatory minimums and jury nullification, oh my: split Ninth Circuit affirms panel federal convictions, though remands to address DOJ spending rider

A big, long and split decision by a panel of the Ninth Circuit yesterday in US v. Lynch, No. 10-50219 (9th Cir, Sept. 13, 2018) (available here), prompted the weak "Wizard of Oz" reference in the title of this post.  There is so much of interest in Lynch for sentencing fans and others, I cannot cover it all in this post. The majority's introduction provides a sense of the case's coverage:

Charles Lynch ran a marijuana dispensary in Morro Bay, California, in violation of federal law.  He was convicted of conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of the dispensary.  In this appeal, Lynch contends that the district court made various errors regarding Lynch’s defense of entrapment by estoppel, improperly warned jurors against nullification, and allowed the prosecutors to introduce various evidence tying Lynch to the dispensary’s activities, while excluding allegedly exculpatory evidence offered by Lynch.  However, Lynch suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court’s evidentiary rulings were correct in light of the purposes for which the evidence was tendered.  A remand for resentencing is required, though, on the government’s cross-appeal of the district court’s refusal to apply a five-year mandatory minimum sentence, which unavoidably applies to Lynch.

Following the filing of this appeal and after the submission of the government’s brief, the United States Congress enacted an appropriations provision, which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws. Lynch contends that this provision therefore prohibits the United States from continuing to defend Lynch’s conviction.  We need not reach the question of whether the provision operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law. Remand will permit the district court to make findings regarding whether Lynch complied with state law.

Judge Watford dissented from the panel majority in Lynch, and his dissent starts this way:

I would reverse and remand for a new trial. In my view, the district court went too far in trying to dissuade the jury from engaging in nullification.  The court’s actions violated Charles Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.

By its very nature, a case of this sort touches a sensitive nerve from a federalism standpoint.  At the time of Lynch’s trial in 2008, the citizens of California had legalized the sale and use of marijuana for medicinal purposes; the federal government nonetheless sought to prosecute a California citizen for conduct that arguably was authorized under state law. Because federal law takes precedence under the Supremacy Clause, the government could certainly bring such a prosecution, notwithstanding the resulting intrusion upon state sovereignty interests.  See Gonzales v. Raich, 545 U.S. 1, 29 (2005).  But the Framers of the Constitution included two provisions that act as a check on the national government’s exercise of power in this realm: one stating that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; the other requiring that “such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const., Art. III, § 2, cl. 3.  The Sixth Amendment further mandates that in all criminal prosecutions the accused shall enjoy the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.”  Thus, to send Lynch to prison, the government had to persuade a jury composed of his fellow Californians to convict.

One of the fundamental attributes of trial by jury in our legal system is the power of the jury to engage in nullification — to return a verdict of not guilty “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920).  The jury’s power to nullify has ancient roots, dating back to pre-colonial England.  See Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)).  It became a well-established fixture of jury trials in colonial America, perhaps most famously in the case of John Peter Zenger, a publisher in New York acquitted of charges of seditious libel.  See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 871–74 (1994).  From ratification of the Constitution to the present, the right to trial by jury has been regarded as “essential for preventing miscarriages of justice,” Duncan v. Louisiana, 391 U.S. 145, 158 (1968), in part because the jury’s power to nullify allows it to act as “the conscience of the community,” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 87 (1994).

Cross-posted at Marijuana Law, Policy and Reform.

September 14, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, September 12, 2018

As Booker enters its adolescence, do we really know much of substance about substantive reasonableness review?

The question in the title of this post is prompted in part by a couple of recent reasonableness rulings from the Sixth and Tenth Circuits that seemed noteworthy: in US v. Heard, No. 17-3062 (6th Cir. Sept. 11, 2018) (available here), a split Sixth Circuit panel upholds an above-guideline sentences over a spirited dissent in firearm cases; in US v. Staples, No. 17-2068 (10th Cir. Aug 27, 2018)  (available here), a unanimous Tenth Circuit panel reverses a below-guideline sentences in a fraud case.  These decisions reflect one feature of nearly all criminal appeals, namely that the government wins and the defendant loses.  But I was inspired to pose the question in the title of this post because these these decisions also reinforce my sense that, even 13 years into the post-Booker world, there is still very little jurisprudential substance to substantive reasonableness review.  These decisions represent data points, but not much more.

In this post some months ago, I provided a string cite of commentary  documenting the mess that reasonableness review has become in the circuits.   I will provide this list again in part because it support my belief that federal sentencing law and practice would benefit significantly from the Supreme Court's further engagement with reasonableness review.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

As long-time readers know, I used to regularly report on circuit reasonableness rulings in the years after Booker and the follow up cases of RitaGall and Kimbrough.  But now I barely notice these cases and rarely report on them, because there seems to me little significance in individual data points absent broader jurisprudential developments.  But maybe I am missing something, and thus the question here posed.

September 12, 2018 in Booker and Fanfan Commentary, Booker in the Circuits, Gall reasonableness case, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Florida felony disenfranchisement ugliness getting a lot more scrutiny thanks to John Oliver

John-oliver-discusses-felony-disThis local article, headlined "This HBO comedian ridiculed Florida’s clemency process. Rick Scott takes it seriously," reports on notable developments in Florida thanks in part to a low-profile issue getting some high-profile attention.  Here are excerpts:

For only the third time this year — but this time under a withering national media glare — Florida’s highest elected officials sat in judgment Tuesday of people whose mistakes cost them the right to vote.

During a five-hour hearing, 90 felons made their case to Florida Gov. Rick Scott and three members of the Cabinet, asking to have their rights restored. It was a packed house in the Cabinet room of the state Capitol, as Tuesday’s hearing drew reporters and cameras from, among other outlets, NPR, The Huffington Post and The Guardian. The hearings typically attract one or two members of the Tallahassee press corps.

Only two days before, Florida’s restoration of rights process was skewered on national TV by John Oliver of HBO’s “Last Week Tonight.” He devoted a 13-minute segment to the Florida clemency system, calling it “absolutely insane” and mocking Scott for creating “the disenfranchisement capital of America.”

Under a policy struck down by a federal judge that remains in effect while Scott and the state appeal, anyone with a felony conviction in Florida must wait five years before petitioning the state to regain the right to vote, serve on a jury or possess a firearm.

Florida has an estimated 1.5 million felons who have been permanently stripped of the right to vote, far more than any other state. To get their rights restored, they must formally apply to make an appeal before Scott and the Cabinet, which is now composed of Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam and Chief Financial Officer Jimmy Patronis....

Voters will have a chance to overhaul the restoration system before Scott and the three Cabinet members are scheduled to hold their next clemency hearing on Dec. 5. A month before then, on Nov. 6, voters will decide on Amendment 4 that would restore the right to vote to most felons after they complete their sentences, if 60 percent of voters approve....

The five-year waiting period was implemented by Scott, Bondi, Putnam and another Cabinet member after their election in 2010. A statewide petition drive collected nearly 1 million signatures to get Amendment 4 before voters this fall.

Scott, the Republican nominee for U.S. Senate against Democrat Bill Nelson, supports the existing system. With his approval, the state is now appealing U.S. District Court Judge Mark Walker’s decision to strike down the rights restoration system as arbitrary and unconstitutional.

Amendment 4 does not distinguish between violent and non-violent felons, but people convicted of murder and sex crimes would not be eligible to regain their rights if it passes. A political committee that supports the amendment, Floridians for a Fair Democracy based in Clearwater, spent $3.579 million in the week ending Aug. 31, with nearly all of the money spent on a “media buy,” which likely means TV advertising. The group has raised $14.4 million so far with large contributions from a number of wealthy out-of-state individuals and from the American Civil Liberties Union.

The permanent elimination of civil rights to felons has been in effect in the state for more than a century, under Republican and Democratic governors, and was lifted only during the four-year term of Charlie Crist, from 2007 to 2011, when 155,315 offenders who were released had their rights restored. Under Scott, only about 4,350 offenders have had their rights restored.

The full John Oliver segment, which is gets especially interested toward the end, is available at this link.

Some (of many) prior related posts:

September 12, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 11, 2018

A terrific partial unpacking of "Johnson v. United States: Three years out"

I noted in posts here and here last month, Attorney General Jeff Sessions and Senators Orrin Hatch and Tom Cotton are talking up the need for reform to the Armed Career Criminal Act in response to the Supreme Court's 2015 ruling in Johnson v. US.   I just now noticed that Andrew Hamm has this lengthy follow-up post at SCOTUSblog under the title "Johnson v. United States: Three years out."  I recommend that post in full, and here is a flavor:

After the decision in Johnson, individuals sentenced under ACCA’s now-defunct residual clause filed petitions for collateral review, a procedure that allows prisoners, within certain constraints, to ask a court to amend their sentences.  Additional follow-on litigation to Johnson has involved questions about other aspects of ACCA’s “violent felony” definition, as in next term’s United States v. Stitt, as well as vagueness challenges to definitions of “violent felony” in other statutes, as in last term’s Sessions v. Dimaya.

But even as these and other challenges play out in the courts, Johnson’s real-world consequences in the three years since the case was decided raise other questions about recidivism, re-entry and policy.  For example, have people sentenced as career offenders and released early after Johnson gone on to commit more crimes?  If some have, are certain, less vague sentence enhancements — as Sessions has recommended and as new legislation introduced by two Republican senators would impose — the proper “fix” to Johnson?  This post looks at some of the different factors at play....

Earlier this month, two Republican senators, Orrin Hatch of Utah and Tom Cotton of Arkansas, introduced the Restoring the Armed Career Criminal Act to, as they wrote in an op-ed for the Washington Examiner, “fix the law that was struck down.” In their press releases announcing the proposed legislation, Hatch and Cotton mentioned victims in their states whom Sessions also discussed.  According to a one-pager about the legislation, the act “would do away with the concepts of ‘violent felony’ and ‘serious drug offense’ and replace them with a single category of ‘serious felony.’ A serious felony would be any crime punishable by 10 years or more.”

Brian Colas, Cotton’s general counsel, and Baron-Evans agree that this new legislation would avoid the vagueness problems of the original ACCA residual clause.  They disagree on how broadly the law would sweep.  Whereas Colas points to the fact the crimes must be punishable by 10 years or more, which he takes as a proxy for the high seriousness of an offense, Baron-Evans worries about the many people regularly sentenced to less than 10 years but for whom 10 years or more would represent a statutory maximum.

Raghavan suggests that subjecting drug offenders to the same sentencing enhancement as violent offenders may not be warranted based on recidivism rates. In its 2016 report on people sentenced as career offenders, the Sentencing Commission split individuals into three categories: career offenders with only drug-trafficking offenses, those with only violent offenses, and those with mixed offenses.  People sentenced as career offenders with only drug-trafficking offenses had a lower recidivism rate than those in the other categories. Among those who did recidivate, those with only drug-trafficking offenses “tended to take longer to do so” than those in the other categories. Additionally, “offenders in the other two pathways who were rearrested were more likely to have been rearrested for another violent offense” than offenders with only drug-trafficking offenses.

The next step for the legislation is the Senate Judiciary Committee.  Colas estimates that it will take six to eight months for this legislation to get through the committee. He notes that the act will be absorbed into a “broader fight” for criminal justice reform in Congress. 

This post provides a clear and balanced review of data and the state of the debate over one proposed ACCA fix in the wake of Johnson.  But I call the post only a "partial unpacking" of the post-Johnson landscape because it does not address whether and how federal ACCA charging practices have changed after Johnson and/or whether it might be especially sound to just give judges more sentencing discretion in response to an array of ACCA problems.

The reason Johnson in particular, and ACCA in general, is so consequential and the subject of so much litigation is because ACCA's intricate and vague rules about predicate offenses turn a regulatory crime (possessing a firearm as a felon) with normally only a 10-year maximum sentence into a mega-crime with a 15-year mandatory minimum sentence.  Rather than dicker excessively over the particulars of the rules for qualifying predicates in future ACCA debates, it might make a lot more sentence to just raise the normal maximum to, say, 15 years and also lower the ACCA minimum to, say, 5 years.  By so doing, persons with priors that might or might not qualify for ACCA treatment still could be sentenced under (advisory) guidelines in the 5-to-15-year range without a need to litigate all the particulars of all the priors.  Just a thought for would-be staffers looking forward to "six to eight months" of ACCA debates.

Prior related posts:

September 11, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Sunday, September 09, 2018

"Sex Offenders, Custody and Habeas"

The title of this post is the title of this new paper by Wendy Calaway now available via SSRN.  Here is the abstract:

Habeas Corpus is lauded as the ultimate bastion of protection for individual liberty.  It is often the last opportunity criminal defendants have at their disposal to unshackle themselves from a criminal conviction or sentence.  Despite the rhetoric surrounding habeas corpus, legislative efforts to limit access to habeas review are well known and have become pervasive.  However, at least one aspect of these limitations has traditionally been given very liberal interpretation by the courts.  The requirement that the habeas petitioner be in custody in order to be eligible for habeas review has been given broad definition.  The courts have not required that an individual be physically held in order to satisfy the custody requirement.  In a series of cases, the courts have determined that everything from parole, to probation, to an OR bond pending trial satisfy the statutory requirement of custody.  However, the courts have uniformly refused to extend this liberal interpretation of custody to individuals subject to statutory sex offender requirements.

This Article argues that the requirements imposed on sex offenders are at least as onerous and burdensome as those imposed on parolees, probationers and those on bond awaiting trial. In many cases, the sex offender requirements are considerably more arduous.  The Article discusses the history and evolution of the custody requirement and its application to sex offender cases.  Using specific examples of cases where individuals subject to the sex offender requirements have suffered tangible and intangible restrictions on liberty and have failed to obtain relief in the courts, the Article argues that the courts have failed to consider the actual implications of these restrictions. Social science research on the collateral consequences of sex offender requirements is reviewed.  The Article concludes that courts should re-examine the application of the custody doctrine to sex offenders, acknowledging the actual effects these restrictions have on the liberty interests of the individuals.

September 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Saturday, September 08, 2018

"The Power of Prosecutors"

The title of this post is the title of this notable new article authored by Jeffrey Bellin now available via SSRN. Here is its abstract:

One of the predominant themes in the criminal justice literature is that prosecutors, not legislators, judges, or police, dominate the justice system.  Over 75 years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.”  In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors, not judges, police, or legislators, “are the criminal justice system’s real lawmakers.”  And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence.  It reveals a curious echo chamber enabled by a puzzling lack of dissent.  With few voices challenging ever-more-strident prosecutor-dominance rhetoric, academic claims became uncritical, imprecise, and ultimately incorrect.

An unchallenged consensus that “prosecutors are the criminal justice system” and that the “institution of the prosecutor has more power than any other in the criminal justice system,” has real consequences for criminal justice discourse.  Portraying prosecutors as the system’s iron-fisted rulers obscures the complex interplay that actually determines criminal justice outcomes.  The overheated rhetoric of prosecutorial preeminence fosters a superficial understanding of the criminal justice system, overlooks the powerful forces that can and do constrain prosecutors, and diverts attention from the most promising sources of reform (legislators, judges, and police) to the least (prosecutors).

September 8, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, September 07, 2018

US House passes broad rewrite of the federal definition of "crime of violence" without any hearings

While a number of seemingly popular federal sentencing reform bills and marijuana reform bills have waited years for a vote in one or another chamber of Congress, the "Community Safety and Security Act of 2018," H.R. 6691, was passed through the US House of Representatives this morning barely a week after its introduction.  This new Reason piece provides some details under a full headline that captures the essentials: "House Passes Bill to Reclassify Dozens of Offenses as 'Crimes of Violence': Opponents say the bill, rushed to the floor without a hearing, would dangerously expand what's considered an 'aggravated offense'":

Republicans in the House passed a bill this morning that would reclassify dozens of federal crimes as "crimes of violence," making them deportable offenses under immigration law. Criminal justice advocacy groups say the bill, rushed to the floor without a single hearing, is unnecessary, is overbroad, and will intensify the problem of overcriminalization.

The Community Safety and Security Act of 2018, H.R. 6691, passed the House by a largely party-line vote of 247–152. Among the crimes that it would make violent offenses are burglary, fleeing, and coercion through fraud.

"Groups on the right and the left are deeply concerned about the bad policy in this bill and the unfair process through which it came to the floor," Holly Harris, the executive director of the U.S. Justice Action Network, said in a statement to Reason. "At a time when we have bipartisan support for criminal justice reforms that will safely reduce incarceration and better prioritize public safety, passing a bill that does just the opposite makes no sense at all."

In April, the Supreme Court ruled in Sessions v. Dimaya that the definition of a "crime of violence" used for federal immigration law — conviction under which can lead to deportation proceedings — was unconstitutionally vague. House Republicans crafted the bill, they say, in response to the Supreme Court's recommendations in that case. But the criminal justice reform advocacy group FAMM warned that the bill "would label seemingly nonviolent offenses such as burglary of an unoccupied home and fleeing as violent offenses."...

The bill was also opposed by the House Liberty Caucus, which released a statement saying that the legislation "expands unconstitutional federal crimes and provides grossly disproportionate consequences for nonviolent offenses."...

Rep. Karen Handel (R-Ga.) claims the bill is urgently needed to keep, as its name suggests, communities safe from violent crime.  "We don't have the privilege to squabble over hypotheticals that have no bearing on the application of this law," Handel said on the House floor.  "I can assure my colleagues this bill is not overly broad. It's not a dangerous overexpansion. Instead, it's a carefully crafted response to the Supreme Court's recommendations."

Democrats and criminal justice groups also objected to the speed at which the bill sailed to the House floor.  It was introduced just a week ago and did not have a single hearing or markup prior to today's vote. The House Liberty Caucus calls the process "farcical."

In a tweet, Jason Pye, the vice president of legislative affairs at the libertarian-leaning group FreedomWorks, writes: "In my view, this bill is mostly politics.  I agree that Dimaya requires a fix, but this bill has flaws that could have, and should have, been worked out in committee markup.  It's shameful that this bill was handled this way."

Especially because the definition of "crime of violence" under federal law matters in lots of arenas beyond immigration, I am hopeful that the Senate will take a more careful and deliberative approach to this issue than has the House. I am also amazed at how quickly complicate legislation can be moved through part of the legislative process when there is a political will to do so (even when it is unclear whose political will is in operation).

September 7, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

"Mitigation is Difficult: A Moral Evaluation of a Mitigation Practice at Sentencing"

The title of this post is the title of this interesting-looking new paper just posted to SSRN authored by Allan McCay.  Here is its abstract:

In this paper I presuppose that blame and retributive punishment can be deserved, and construct a theory that is intended to morally evaluate the mitigation practices of criminal justice systems, using insights about the assessment of degrees of blameworthiness found in the work of Dana Nelkin, in conjunction with David Hodgson’s views on self-formation. After using the theory to evaluate an actual mitigation practice, I note that as a result of the complexity of any fully satisfactory theory, there is an epistemic problem inherent in the assessment of pleas in mitigation that means that even moderately competent evaluation of such pleas may be beyond the capacities of humans.  I argue that this epistemic issue presents a problem for retributive practices, such as those found in many criminal justice systems.

September 7, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, September 03, 2018

"Giving Guidance to the Guidelines"

The title of this post is the title of this paper by Jelani Jefferson Exum recently posted to SSRN. Here is its abstract:

Throughout the country, we are seeing sentencing reform efforts reshape the way resources are being used to control crime and punish offenders.  Fueled mostly by the practical challenges of overcrowded prisons and mounting costs, lawmakers have been willing to amend existing law in order to reduce incarceration for low-level, nonviolent offenders. This same effort at being “smart on crime” has been embraced by the federal government as well.  While most of these changes are in the form of changes to mandatory minimum laws, the use of evidence-based sentencing practices, and a focus on diversion and re-entry programs, the role that the actual sentencers -- the judges -- play in the process should not be ignored. Any reform of federal sentencing necessarily requires reforming the U.S. Sentencing Guidelines to incorporate those changes.  However, now that the sentencing guidelines are advisory, judges can follow their own policy rationales in deciding what sentences are reasonable for each offender before them.  Therefore, though Congress may have made certain changes to sentencing law, and the Attorney General may have shifted law enforcement and punishment priorities, when it comes to individual sentencing decisions, judges are free to follow their own vision of sentencing reform.

While judicial sentencing discretion has its benefits when it comes to individualizing sentences, unfortunately, judges often do not have enough relevant information to adequately determine what amount and type of punishment is appropriate to achieve punishment goals.  However, my interviews with federal district judges indicate that many judges are very open to receiving such information.  Thus, federal sentencing reform efforts should include the development of a way to effectively deliver information about sentencing goals and purposes to district judges.  The Guidelines could be used to accomplish this task, but that would require allowing the needs of judges to give guidance to the Guidelines.

September 3, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, September 02, 2018

"Prosecuting in the Shadow of the Jury"

The title of this post is the title of this new paper authored by Anna Offit available via SSRN. Here is its abstract:

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017.  The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice.  This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants.

By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that imagined jurors serve as an ethical resource for prosecutors.  Part I reviews contemporary legal and interdisciplinary research on the declining number of jury trials and prosecutorial discretion in the United States.  Part II describes the ethnographic research method deployed in this case study, noting its unique capacity to document off the record decision-making practices.  Part III presents the empirical findings of this study with attention to how hypothetical jurors inform prosecutors' evaluations of their cases, evidence, investigations, and plea agreement discussions.  Part IV considers several explanations for hypothetical jurors' perceived relevance to prosecutors' work beyond their instrumental and strategic value.  Part V concludes that the U.S. Attorney’s Office that is the subject of this study models the democratizing potential of lay decision-makers, even in hypothetical form.  This finding contributes a novel rationale for fortifying the U.S. jury system and a novel perspective to the study of prosecutorial ethics.

September 2, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, August 31, 2018

"Judging Risk"

The title of this post is the title of this article authored by Brandon Garrett and John Monahan now available via SSRN. Here is its abstract:

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process — from policing, to pre-trial, sentencing, corrections, and parole.  As efforts to reduce mass incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in the criminal justice system.  Such work has largely neglected how decisionmakers use risk assessment in practice.  In this Article, we explore the judging of risk assessment.  We study why decisionmakers so often fail to consistently use quantitative risk assessment tools.

We present the results of a novel set of studies of both judicial decisionmaking and attitudes towards risk assessment.  We studied Virginia because it was the first state to incorporate risk assessment in sentencing guidelines.  Virginia has been hailed as a national model for doing so.  In analyzing sentencing data in Virginia, we find that judicial use of risk assessment is highly variable.  Second, in the first comprehensive survey of its kind, we find judicial attitudes towards risk assessment in sentencing practice quite divided.  Even if, in theory, an instrument can better sort offenders in less need of jail or prison, in practice, decisionmakers may not use it as intended.

Still more fundamentally, in criminal justice, unlike in other areas of the law, one typically does not have detailed regulations concerning the use of risk assessment, specifying the content of assessment criteria, the peer review process, and standards for judicial review.  We make recommendations for how to better convey risk assessment information to judges and other decisionmakers, but also how to structure that decisionmaking based on common assumptions and goals.  We argue that judges and lawmakers must revisit the use of risk assessment in practice.  We conclude by setting out a roadmap for use of risk information in criminal justice.  Unless judges and lawmakers regulate the judging of risk assessment, the risk revolution in criminal justice will not succeed in addressing mass-incarceration.

August 31, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, August 29, 2018

Maryland top court issues lengthy split opinions on application of Eighth Amendment limits on juve life sentences

The Maryland Court of Appeals handed down today a very lengthy opinion addressing the application of Eighth Amendment limits on lengthy juvenile sentences.  The opinion in Carter v. Maryland, Nos. 54 (Md. Aug. 29, 2018) (available here), gets started this way:

It has been said that “mercy without justice is the mother of dissolution; justice without mercy is cruelty.” A sentence of life in prison without parole may be just for certain adult offenders, but the Eighth Amendment’s proscription against cruel and unusual punishments precludes that sentence for a juvenile offender unless the defendant is an incorrigible murderer. Although there need not be a guarantee of release on parole, a sentence imposed on a juvenile offender must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  In this opinion, we consider three cases involving crimes that were committed when each Petitioner was a juvenile.

None of the sentences imposed in these cases was explicitly “life without parole.” In two cases, the Petitioners were sentenced to life with the possibility of parole. In the third case, the Petitioner was sentenced to 100 years incarceration and will not be eligible for parole until he has served approximately 50 years in custody. Each Petitioner asserts that he is effectively serving a sentence of life without parole, because the laws governing parole in Maryland do not provide him with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  They have each filed a motion to correct an illegal sentence.

With respect to the two Petitioners serving life sentences, we hold that their sentences are legal as the laws governing parole of inmates serving life sentences in Maryland, including the parole statute, regulations, and a recent executive order adopted by the Governor, on their face allow a juvenile offender serving a life sentence a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  We express no opinion as to whether those laws have been, or will be, carried out legally, as that issue is not before us and may be litigated in the future.  With respect to the Petitioner who is serving a 100-year sentence, we hold that the sentence is effectively a sentence of life without parole violative of the Eighth Amendment and that the Petitioner is entitled to be re-sentenced to a legal sentence.

August 29, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

California becomes first state to completely do away with money bail

Though bail is not technically a sentencing issue, the nationwide debate over bail practices has lots of echoes into sentencing and is certainly an important element of wider criminal justice reform movements. Consequently, it seems worth noting this news via the Los Angeles Times under the headline "California Gov. Jerry Brown signs overhaul of bail system, saying now 'rich and poor alike are treated fairly'." Here are some of the details:

California Gov. Jerry Brown on Tuesday signed a landmark bill to overhaul the state’s money-bail system, replacing it with one that grants judges greater power to decide who should remain incarcerated ahead of trial.

The two-year effort fulfills a pledge made by Brown last year when he stalled negotiations over the ambitious legislation, saying he would continue to work with lawmakers and the state’s top Supreme Court justice on the right approach to change the system. The new law puts California at the forefront of a national push to stop courts from imposing a heavy financial burden on defendants before they have faced a jury. “Today, California reforms its bail system so that rich and poor alike are treated fairly,” he said in a statement.

Senate Bill 10 would virtually eliminate the payment of money as a condition of release. Under last-minute changes, judges would have greater power to decide which people are a danger to the community and should be held without any possibility of release in a practice known as “preventive detention.”

Top state officials, judges, probation officers and other proponents of the efforts lauded the new law. Co-authors Sen. Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Alameda) called it a transformative day for criminal justice, and a shift away from a pretrial system based on wealth to one focused on public safety.

Chief Justice Tani Cantil-Sakauye, who helped craft the legislation through the formation of a judicial task force that spent a year studying the issue, described a three-branch solution to address a money-bail system that “was outdated, unsafe and unfair.”...

But the historic passage of the bill has been bittersweet for lawmakers, as opponents — including some of the bill’s most ardent former supporters — argued the final version of the legislation would allow judges to incarcerate more people based on subjective criteria, and did not include enough oversight over risk-assessment tools found to be biased against communities of color.

“No one should be in jail because they are too poor to afford bail, but neither should they be torn apart from their family because of unjust preventative detention,” said a statement from American Civil Liberties Union directors Abdi Soltani in Northern California, Hector Villagra in Southern California and Norma Chávez Peterson, representing San Diego and Imperial counties....

Under SB 10, counties would have to establish their own pretrial services agencies, which would use “risk-assessment tools,” or analysis, to evaluate people arrested to determine whether, and under what conditions, they should be released. Only people charged with certain low-level, nonviolent misdemeanors — a list of charges that can be further narrowed by county — would be eligible for automatic release within 12 hours of being booked into jail.

All others arrested would have to undergo the risk analysis, a system that would sort defendants based on criminal history and other criteria into low-, medium- or high-risk categories. Courts would be required to release low-level defendants without assigning bail, pending a hearing. Pretrial services offices would decide whether to hold or release medium-risk offenders. Judges would have control over all prisoners in the system.

The new law, which will go into effect on Oct. 1, 2019, is expected to decimate the bail industry. Whether it will lead to higher incarceration rates is unknown because courts don’t track the data that would make such an analysis possible, lawmakers have said. But the law will require courts to collect and report incarceration rates and undergo in 2023 an independent review of the legislation’s impact on the criminal justice system.

Still, in the days before its passage, some criminal-justice-reform groups that once supported the bill worked to kill it, landing on the same side as a bail industry that has worked to sink the bill from the beginning. This week, a delegation of criminal-justice-reform advocates from across the state sent a veto letter to Brown.

The bill “sets up a system that allows judges nearly unlimited discretion to order people accused of crimes, but not convicted and presumptively innocent, to be held in jail with no recourse until their case is resolved,” the letter stated.

August 29, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Federal defendant unable to get jury to hear "Trump defense" relating to "flipping"

This New York Daily News piece reports on a notable echo from one of President Trump's many notable comments on the law.  The piece is headlined "Attorney for crack dealer tries the President Trump defense: Don't trust snitches," and here are the details:

President Trump’s disgust with snitches is catching on in court. An attorney for a crack dealer began to argue in closing statements last week that a cooperating witness can’t be trusted — but a judge stopped him before he could cite a “presidential tweet.”

“You know what’s funny? Yesterday Manafort was convicted,” Nkrumah said, alluding to the trial of Trump’s campaign chairman Paul Manafort. The Manafort trial featured testimony from a cooperating witness. Nkrumah was immediately stopped due to an objection from the government.

Out of earshot of the jury, Nkrumah explained that he planned to cite Trump’s remark that “It’s called flipping and it almost ought to be illegal.”... “I believe that the president’s opinion of cooperators is just as pertinent as anyone else’s opinion about cooperators,” Nkrumah explained.

Judge Gregory Woods disagreed and prevented Nkrumah from pursuing the argument further to the jury. “I did not permit the defendant to comment on that presidential tweet,” Woods said, apparently referring to a tweet of Trump’s remarks.  He said the Manafort trial had nothing to do with the drug case, and that Trump’s remarks would needlessly inject a “politically charged, polemic issue.”

“I should note the tweet is that it ‘almost ought to be illegal,’ but as we all know, and as I am going to instruct the jury, it is not illegal. And so I was also concerned about the confusion that may be wrought upon these jurors by presenting that as the view of the speaker,” Woods said.

The jury convicted Russell of a charge of conspiracy to deal crack, but acquitted him of the more serious charge of carrying a firearm in connection with dealing the drugs.

Prior related post:

August 29, 2018 in Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, August 28, 2018

"Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by Trevor George Gardner now available via SSRN.  Here is its abstract:

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments.  This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform.  In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition.

The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law while also challenging widely-held assumptions regarding the value of criminal surveillance and criminal sanction.  In promoting sub-federal government empowerment within the framework of criminal federalism, this Article breaks from conventional theories in the criminal law literature regarding the legal and policy strategies most likely to deliver fundamental change in American criminal justice.

August 28, 2018 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Sunday, August 26, 2018

"Trauma and Sentencing: The Case for Mitigating Penalty for Childhood Physical and Sexual Abuse"

The title of this post is the title of this new paper available via SSRN authored by Mirko Bagaric, Gabrielle Wolf and Peter Isham. Here is its abstract:

People who lack guidance when they are young have an increased risk of committing crimes.  The nurturing that many people receive during their formative years can play a key role in the development of appropriate values and behavior.  Yet there is a reluctance to acknowledge the diminished culpability of offenders who have lacked appropriate guidance during their childhood because it is feared that doing so might be perceived as justifying criminal behavior and hence leading to more crime.  The Federal Sentencing Guidelines expressly state that lack of guidance as a youth should not be a mitigating sentencing consideration.  Despite this, approximately half of all federal judges believe that it should reduce the harshness of the penalty that is imposed on offenders. 

In this Article, we examine whether lack of guidance as a youth should serve to reduce the severity of criminal sanctions.  In doing so, we also discuss the position in Australia where an offender’s neglected upbringing can mitigate his or her penalty.  We conclude that a neglected youth should not of itself mitigate penalty because this would make sentencing law too obscure and uncertain.  There is not even an approximate line that can be drawn to demarcate the boundaries between appropriate and inadequate guidance as a youth. 

However, experiences that are commonly associated with being neglected during childhood and often profoundly set back the mental and/or emotional state of children, namely being subjected to physical or sexual abuse, are more concrete in nature and should be a mitigating factor in sentencing.  Empirical evidence demonstrates that people who are subjected to such trauma in their childhood years have an increased risk of subsequently engaging in harmful behavior, such as criminal activity.  Further, relatively clear criteria can be established to demarcate the scope and application of these experiences during childhood for sentencing purposes.  Reforming the law to make childhood sexual and physical abuse a mitigating consideration would improve the doctrinal coherency of the law and may have the incidental benefit of reducing sentences for female offenders generally and for offenders from socio-economically deprived backgrounds, including African Americans.  This reform could be implemented in a manner that does not compromise community safety, provided that it is complemented by targeted, effective rehabilitative measures.

August 26, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Saturday, August 25, 2018

"Summonsing Criminal Desistance: Convicted Felons' Perspectives on Jury Service"

The title of this post is the title of this interesting paper authored by James Binnall recently posted to SSRN.  Here is its abstract:

This exploratory study is the first to examine how convicted felons view the jury process and their role in that process.  Data derived from interviews with former and prospective felon-jurors in Maine, the only US jurisdiction that does not restrict a convicted felon’s opportunity to serve as a juror, reveal that participants displayed an idealized view of jury service, stressing a commitment to serve conscientiously.  Additionally, inclusion in the jury process affirmed their transitions from “offenders” to “non-offenders.”  In response, participants exhibited a sense of particularized self-worth, emphasizing that negative experiences with the criminal justice system make one a more effective juror.  In sum, this study suggests that among convicted felons, inclusion in the jury process may prompt conformity with the “ideal juror” role, facilitate prosocial identity shifts by mitigating the “felon” label, and help former offenders to find personal value.

August 25, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, August 23, 2018

"Young Adults and Criminal Jurisdiction"

The title of this post is the title of this new paper by Kevin Lapp now available via SSRN. Here is its abstract:

As measured by developmental biology, cultural markers, and self-perception, adolescence is longer today than it has ever been in human history, with leading psychologists asserting that it lasts into the mid-twenties.  This Article considers whether the extension of adolescence requires changing the allocation of criminal jurisdiction over young adults aged eighteen to twenty-five.  It explores three possible responses: (1) keeping young adults within general jurisdiction criminal courts with greater accommodations, (2) expanding juvenile court jurisdiction beyond age seventeen, and (3) creating specialized Young Adult courts.

The Article argues that criminal court’s emphasis on punishment and incapacitation are ill-suited to the individualized interventions that best serve the public’s long-term interest in safety and best promote a successful transition to adulthood.  Expanding juvenile court jurisdiction would make its rehabilitative approach available to young adult offenders who, like juveniles, are not yet fully-developed adults.  But it would also mean the loss of important procedural rights and a paternalistic, inquisitorial, interventionist approach that is not appropriate for young adults.

Specialized courts dedicated to eighteen to twenty-five year-olds offer a developmentally-informed response at the front and back end of cases without unduly complicating the work of the juvenile court, avoid potential due process and rights problems, and communicate to these offenders that they are worthy of something other than punitive, assembly-line treatment as criminals.  That said, creating young adult courts across the nation faces several challenges and carries potential drawbacks for those diverted to young adult court and for the remainder left behind in criminal court.

August 23, 2018 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Reality Winner's agreed-upon (and record-long and below-guideline) 63 month sentence for leaking classified information becomes a reality

In this post a few months ago, I wondered about how Reality Winner, the former Air Force linguist prosecuted for leaking classified information, came to an agreement with federal prosecutors that fixed her federal sentence at 63 months in prison."   This local article, headlined "Reality Winner receives record-setting prison sentence," reports on the sentencing promised in this plea agreement becoming a reality. Here are some details:

Reality Winner on Thursday received a record-setting prison sentence — five years and three months behind bars — for leaking a top-secret government report about Russian meddling in the 2016 election. “I sincerely apologize and take full responsibility for my actions,” the former National Security Agency contractor told Chief U.S. District Court Judge J. Randal Hall in a federal court in Augusta. “In particular, I want to apologize to my family.”

Bobby Christine, U.S. attorney for the Southern District of Georgia, told reporters after the sentence hearing that the government had determined Winner’s actions “caused exceptionally grave damage to U.S. national security.”

“That harm,” he said, “included but was not limited to impairing the ability of the United States to acquire foreign intelligence information similar to the information disclosed.”

“Make no mistake, this was not a victimless crime,” he also said. “Winner’s purposeful violation put our nation’s security at risk, not in a speculative way or hypothetical way but in a very real way, a very direct way.”

Like the judge in the case, Christine said Winner’s sentence is meant to serve as a deterrent. “Winner will serve a term of incarceration that will give pause to others who are entrusted with our country’s sensitive national security information and would consider compromising it,” he said. “Anyone else who may think of committing such an egregious and damaging wrong should think both of the prison sentence imposed today and the very real damage done.”

Winner faced up to 10 years in prison for her crime. But her plea deal with prosecutors called for her to serve five years and three months behind bars. That is longer than anyone else has been sentenced for an “unauthorized disclosure to the media,” federal prosecutors said in a court filing this month. Both Winner’s attorneys and the prosecutors urged Hall to agree to the sentence spelled out in her plea deal.

“The government advises the court that despite the agreed-upon sentence being below the applicable guidelines range, it would be the longest sentence served by a federal defendant for an unauthorized disclosure to the media,” the prosecutors said in their court filing.

The prosecutors added avoiding a trial would prevent them from having to reveal sensitive government information in court. “The agreement reflects a fair resolution of the defendant’s criminal culpability, especially when balanced against the further harm to the national security that would likely result from a trial,” the prosecutors said.

The prosecutors also cited several other similar federal cases in which defendants received shorter prison sentences. In 2013, former FBI bomb technician Donald Sachtleben was sentenced to 43 months in prison for leaking classified information to the Associated Press about a foiled bomb plot in Yemen. That same year, former CIA officer John Kiriakou was given a 30-month sentence for revealing to a freelance journalist the identity of an undercover CIA agent. Two years later, former CIA officer Jeffrey Sterling got a 42-month sentence for leaking to The New York Times classified information about a secret operation to disrupt Iran’s nuclear weapons program.

Winner, 26, the prosecutors said, mailed a copy of a NSA document to The Intercept, an online publication. The Intercept published an article based on the report, saying Russian military intelligence sent spear-phishing emails to more than 100 local election officials and launched a cyberattack against a Florida-based voting software supplier that contracts in eight states.

The Press Freedom Defense Fund, which provides legal support to journalists and whistleblowers and is a program of The Intercept’s parent company, called Winner’s sentence “completely unjust.” “Demonstrating her passion for her country, she heroically — at great personal risk — alerted fellow Americans to vital information that Russia had tampered with the 2016 U.S. elections,” said the Press Freedom Defense Fund, which helped with the appeal of whistleblower Chelsea Manning, a former soldier convicted of violating the Espionage Act. “Her selfless act makes her a true patriot, not a criminal.”

Prior related post:

So how was it decided Reality Winner should get 63 months for leaking classified information? Does it seem about right? 

August 23, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair."

This New York Post piece, headlined "Trump says flipping should be ‘outlawed’ after Cohen plea deal," reports on some notable new comments about the operation of the criminal justice system by Prez Donald Trump this morning.  Here are the details:

President Trump said his former lawyer Michael Cohen “lied” to get a “better deal” with federal prosecutors to reduce his jail time — and suggested that “flipping” should be outlawed.

“You get 10 years in jail, but if you say bad things about somebody in other words, make up stories if you don’t know.  Make up.  They just make up lies. I’ve seen it many times,” the president told “Fox & Friends” in an interview that aired Thursday.

“For 30, 40 years I’ve been watching flippers.  Everything’s wonderful and then they get 10 years in jail and they — they flip on whoever the next highest one is, or as high as you can go,” he said about Cohen, who pleaded to eight felony counts in Manhattan federal court on Tuesday.

“It almost ought to be outlawed. It’s not fair,” Trump continued.

Cohen was facing 65 years behind bars on the charges, but is expected to get a reduced sentence because of the plea deal. Trump said that “in all fairness” to Cohen, “most people are going to do that.”  The president also tried to distance himself from Cohen, who worked for more than 10 years for Trump and was known as a confidant and “fixer” who once said he’d take a “bullet” for Trump.

“He was a lawyer for me, one of many,” the president said.  “You know, they always say, ‘the lawyer,’ and then they like to add ‘the fixer.’” Well, I don’t know if he was a ‘fixer.’ I don’t know where that term came from,” Trump said in the interview.  “But he’s been a lawyer for me. Didn’t do big deals, did small deals. Not somebody that was with me that much.”

He said he would see Cohen “sometimes” but on big deals Trump said “outside lawyers” and “inside lawyers” would take part. “You know, they make it sound like I didn’t live with — without him. I understood Michael Cohen very well. He — well, it turned out he wasn’t a very good lawyer, frankly.”

Two of the charges Cohen pleaded to involved hush-money payments made before the 2016 election to two women who alleged they had affairs with Trump between 2006 and 2007, a possible violation of campaign finance laws. Cohen paid $130,000 to former porn star Stormy Daniels, whose real name is Stephanie Clifford, and arranged for $150,000 to be paid to the parent company of the National Enquirer to keep Karen McDougal’s story under wraps.

Trump said he didn’t know about the payments until “later on” even though Cohen has a tape of him and the president discussing them. “Later on I knew. Later on. What he did — and they weren’t taken out of the campaign finance, that’s the big thing. That’s a much bigger thing,” Trump said. “Did they come out of the campaign? They didn’t come out of the campaign, they came from me.”

Prez Trump is entirely right that cooperation deals can often result in false testimony and can produce considerable unfairness.  In fact, Prez Trump's staff should have urged him to cite Alexandra Natapoff's great book, "Snitching: Criminal Informants and the Erosion of American Justice," in conjunction with his complaints.  Here is a bit of the description of that book:

Although it is nearly invisible to the public, criminal snitching has invaded the American legal system in risky and sometimes shocking ways. Snitching is the first comprehensive analysis of this powerful and problematic practice, in which informant deals generate unreliable evidence, allow criminals to escape punishment, endanger the innocent, compromise the integrity of police work, and exacerbate tension between police and poor urban residents.  Driven by dozens of real-life stories and debacles, the book exposes the social destruction that snitching can cause in high-crime African American neighborhoods, and how using criminal informants renders our entire penal process more secretive and less fair. Natapoff also uncovers the farreaching legal, political, and cultural significance of snitching: from the war on drugs to hip hop music, from the FBI’s mishandling of its murderous mafia informants to the new surge in white collar and terrorism informing.

I doubt that Prez Trump is serious about advocating for the prohibition of cooperation deals, and I am certain few in Congress or elsewhere would even consider seriously the reforms proposed in Natapoff's book.  But if Prez Trump really cares about the unfairness and other problems that can be created by cooperation deals, there is a whole lot he could and should do right away.  First and foremost, he should express opposition to all mandatory minimum sentencing provisions (or at least suppose reforms like the Justice Safety Valve Act) because the threat of a significant mandatory minimum prison term often creates the most extreme pressure to deal and cooperate.  Second and on-going, he could and should consider focusing at least part of his (supposed) interest in broad use of clemency powers to those persons seemingly most unfairly convicted and sentenced based on questionable evidence coming from cooperators.

UPDATE: Alexandra Natapoff has this new post reacting to the President's comments, and here are her insights:

The irony is that Trump is attacking snitching for its greatest strength: it enables law enforcement to investigate and prosecute the wealthy, the powerful, and the politically insulated.  Think of the Enron prosecution, or the dismantling of the mafia, neither of which could have happened without cooperation deals.  Also ironically, Trump is criticizing informant use in its least problematic incarnation. When Trump's "many friends" become defendants and informants, they will be well represented and informed about their rights and options, while their cooperation deals will be recorded, vetted, and publicly scrutinized.  Most informants, and most defendants faced with snitch testimony, will get none of these protections. It is precisely here in the white collar and high profile political context that cooperation is best regulated, most accountable and transparent, and thus least problematic.

To be sure, there are many reasons to agree that snitching "should almost be illegal."  It leads to wrongful convictions; it tolerates the crimes committed by informants; it coerces the most vulnerable and rewards the most culpable. It promotes government secrecy, rule breaking, and sometimes corruption.  But its potential to hold powerful people accountable is its best feature.

August 23, 2018 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (4)

Tuesday, August 21, 2018

Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison

As reported here by USA Today, "Donald Trump's former personal lawyer and 'fixer' Michael Cohen, has pleaded guilty to charges including campaign finance fraud stemming from hush money payments to porn actress Stormy Daniels and ex-Playboy model Karen McDougal." Here is more (with a little sentencing emphasis):

The 51-year-old Cohen entered the plea in federal court in New York on Tuesday. The other charges involve bank fraud and income tax evasion.  As part of his plea agreement, Cohen agreed not to challenge any sentence from 46 to 63 months.

Cohen's plea follows months of scrutiny from federal investigations and a falling out with the president, whom he previously said he'd "take a bullet" for. FBI raids in April sought bank records, communications with Trump's campaign and information on payments to Daniels and McDougal. Both women claimed Trump had affairs with them, which he denies.

The deal comes after reports that federal investigators were looking into whether Cohen committed bank and tax fraud worth more than $20 million, according to a media report. The New York Times, citing anonymous sources, said authorities were focusing on loans obtained for taxi businesses owned by Cohen and his family.

Investigators were also considering whether Cohen had violated campaign finance and other laws when he made financial arrangements to pay women to stay silent about alleged affairs with then-candidate Trump back in 2016.... Prosecutors had reportedly considered filing charges against Cohen by the end of August.

I have not yet seen the plea agreement (which I hope will soon be publicly available), but I assume from the line stressed above that the guideline calculation puts Cohen's offense level at least 23 under the federal sentencing guidelines. The guideline range for a first offender is 46-57 months at level 23 and is 51-63 months at level 24. The bottom and top of these ranges seem to be the basis for the range reportedly in Cohen's plea deal (and this shows, yet again, how the guidelines are always an integral part of plea negotiations and why I consider every federal sentence to be "based on" the guidelines in some way or another).

UPDATE: The folks at Lawfare now have collected here the criminal information, waiver of indictment and plea agreement in US v. Michael Cohen.  The eight-page plea agreement has lots of interesting sentencing elements, and here is language (from pp. 4-5) confirming my speculations above and highlighting why there will be no departure discussions but lots of 3553(a) discussion as sentencing approaches:

Based upon the calculations set forth above, the defendant's Guidelines range is either 51 to 63 months' imprisonment under the Government's calculations, or 46 to 57 months' imprisonment under the defendant's calculations. Accordingly, the stipulated Guidelines range is 46 to 63 months' imprisonment (the "Stipulated Guidelines Range")....

The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines Range set forth above is warranted.  Accordingly, neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein. Nor will either party in any way suggest that the Probation Office or the Court consider such a departure or adjustment under the Guidelines.

The parties agree that either party may seek a sentence outside of the Stipulated Guidelines Range based upon the factors to be considered in imposing a sentence pursuant to Title 18, United States Code, Section 3553(a).

August 21, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (11)

Still more on Senator Cotton's efforts to thwart significant federal criminal justice reforms and responses there to

In posts late last week here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has already engendered.  Now Politico has this new article on this beat headlined "Sentencing reform tests Cotton’s sway with Trump."  Here are a few highlights from a lengthy article:

Tom Cotton is going all out to defeat a last-ditch effort to pass sentencing reform before this year’s midterm elections, hoping to win a high-stakes influence campaign over President Donald Trump on the issue.

Cotton is lambasting the proposal as a “jailbreak” that would “let serious felons back on the streets,” taking on a daunting coalition fighting for the package that includes the Koch political operation, White House adviser Jared Kushner and a number of powerful GOP senators. But Cotton believes that, in the end, President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) will side with him.

“The president went to Singapore and agreed with the Singaporeans that we should give the death penalty to drug dealers. I can’t imagine the president wants to reduce mandatory minimum sentences for drug dealers,” the Arkansas Republican said in an interview. “I believe Sen. McConnell shares my view that we should not let serious felons out of jail and we should not shorten the sentences for drug dealers.”

Even opponents of sentencing reform will privately admit it would likely pass if McConnell brings it up. But Cotton’s loud opposition may determine whether or not McConnell even allows a vote given his reluctance to summon up legislation that divides the conference — right before the election, no less....

The conflict is pitting some of Trump’s closest allies against each other. On one side are Cotton and Sen. David Perdue (R-Ga.), who calls the sentencing component “troubling” and wants to concentrate on prison reform. On the other are Sen. Rand Paul (R-Ky.), who wants to go even further on criminal justice reform but would be willing to accept the slimmed-down proposal, and Sen. Lindsey Graham (R-S.C.), who supports it....

Though the president supports the standalone prison reform effort, no one is quite sure where exactly Trump is going to come down on the sentencing piece that’s being added by Senate Judiciary Chairman Chuck Grassley (R-Iowa). Advocates for sentencing reform are hoping the president will offer a crucial endorsement to get the legislation across the finish line after commuting the sentence of Alice Johnson for drug offenses, while opponents say he’s unlikely to undercut his law-and-order persona....

“There is not a constituency, certainly among Republican voters, to let serious felons out of prison or slash their prison sentences,” Cotton said in the interview. “It’s ill-advised policy and even more ill-advised timing.” Countered Paul, another close Trump ally with opposing views: “We have a lot of non-violent criminals in our prison and they’re taking up space that could be better put to use for violent criminals."

Cotton also has strong allies, including Attorney General Jeff Sessions, who has long opposed sweeping sentencing reforms. The two have frustrated people working on the bill.

Yet many on the law enforcement side, a key Trump constituency, are working with Cotton. Jonathan Thompson, the National Sheriff Association's executive director, has spoken to the president twice about sentencing reform in the past year and half: “The president knows we’re concerned.” “We think what he’s doing is terrific. Sen. Cotton recognizes that it’s a very flawed bill,” said Larry Leiser, president of the National Association of Assistant U.S. Attorneys. “We’re hopeful the president won’t [endorse it].”

Unless Trump makes a major push for the legislation and takes on his critics like Cotton, there are many reasons for McConnell not to bring up the bill before the election. It would likely take at least a week for the Senate to process, time that McConnell might think is better spent processing lifetime judicial appointments ahead of an uncertain midterm outcome. Plus it would invoke an ugly intraparty foodfight, squaring Cotton off with proponents of sentencing reform like Grassley, who has been tweeting that the president “wants something done on prison/crim justice reform. So do I.”

“The consensus is the prison reform stuff,” said Senate Majority Whip John Cornyn (R-Texas). “There are people who want to do more, but it’s the usual issue: Do you want try and do more and fail, or do you want to do what’s possible?”

Despite the long odds, the battle is raging behind the scenes. Internal discussions of the subject at Senate lunches have been heated, according to Republican sources, a preview of what might happen on the Senate floor if the chamber takes it up. It’s the same dynamic that kept McConnell from bringing up a larger criminal justice reform package in 2016 as Cotton railed against it and declared the United States has an "under-incarceration problem.”

Trump’s “for prison reform, I’m for prison reform. What I don’t support is sentencing reductions under the guise of prison reforms, and that’s unfortunately what many senators are moving towards,” Cotton said in the interview. A number of conservative senators have quietly expressed their opposition to the sentencing reform component, according to groups working to defeat it. But Cotton's taken a bigger gamble by getting out front to stop a bill that hasn’t even produced yet.

Meanwhile, over here at the Daily Signal, John G. Malcolm and Brett Tolman have this lengthy new commentary under the headline "Why It’s Not ‘Soft On Crime’ to Support Criminal Justice Reform." Here is a snippet focused on mandatory minimums:

Cotton and others argue that mandatory minimum charges are reserved for kingpins and other major drug dealers, and low-level dealers are rarely subjected to mandatory minimum penalties. However, the U.S. Sentencing Commission, a bipartisan independent agency that collects and analyzes federal sentencing data, found that a surprisingly large number of low-level drug couriers are subjected to mandatory minimum penalties.

It is easy to see how that happens. Under federal law, a defendant charged as part of a drug conspiracy—even a low-level courier, who may be acting solely to support his own addiction—can be charged and sentenced based on the total amount of drugs sold by everyone who participated in that conspiracy. That’s true even if the courier never knew who these people were or what quantity of drugs they sold.

Of course, the courier should be punished. But how badly? Remember, we are talking about mandatory minimum penalties. A judge can always impose a higher sentence, up to the statutory maximum, for deserving drug traffickers and violent criminals. The proposed reductions are, in truth, quite modest.

Senators are currently debating the possibility of reducing the mandatory minimum penalties for second-time drug offenders from 20 years to 15 years, and for third-time drug offenders from life in prison without the possibility of parole to 25 years. Does anyone really think that minimum penalties of 15 and 25 years are not serious? 

Some of many prior recent related posts:

August 21, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Punishing Criminals for Their Conduct: A Return to Reason for the Armed Career Criminal Act"

The title of this post is the title of this timely new paper now available via SSRN authored by Sheldon Evans.  Here is the abstract:

For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism.  This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality.  This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.

In an effort to find solutions for this ailing doctrine, this Article analyzes how states have structured their own recidivist sentencing laws to avoid the same problems wreaking havoc in the federal courts.  Of all the state approaches, a conduct-based approach is most promising because of its practical application and ideological consistency.  Moreover, the many roadblocks articulated by the Court over the years that have supposedly prevented it from taking a conduct-based approach are overcome after considering the constitutional and practical sentencing landscape.

August 21, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Monday, August 20, 2018

Texas jury convicts doctor of raping incapacitated patient ... then sentences him to probation for 10 years

It is sometimes assumed that having juries impose sentences will produce harsher outcomes, but a recent rape case from Texas provides an example of a jury imposing only a non-prison sentence after returning a guilty verdict in a rape case.  This Houston Chronicle story, headlined "Many surprised at sentence for ex-Baylor doctor who raped a Houston hospital patient." Here are some of the details:

When a former Houston doctor was sentenced to probation Friday for raping an incapacitated patient at a county hospital, the punishment surprised defense attorneys, disappointed law enforcement, elicited concern from a rape victims advocacy group and sparked outrage on social media.

The doctor, who has been stripped of his license, admitted during the trial that he had sexual contact with the woman during the night shift at Ben Taub Hospital in 2013, but told jurors it was consensual. Although he was not assigned to her case, he slipped into her room anyway after he noticed her breast implants....

The jury five women and seven men sentenced Dr. Shafeeq Sheikh, a former Baylor College of Medicine resident, to 10 years on probation for raping the patient while she was tethered to machines and receiving treatment for an acute asthma attack.

The jurors found Sheikh guilty Thursday after deliberating for 14 hours over two days.  The conviction means Sheikh, 46, must be a registered for the rest of his life as a sex offender. Jurors recommended the 10-year probated sentence for the doctor and suspension of a $10,000 fine after deliberations on Friday, recommendations that visiting Senior District Judge Terry L. Flenniken was required by law to follow.

During argument for the sentencing phase of the trial Friday, Assistant District Attorney Lauren Reeder asked jurors to keep in mind that Sheikh exploited his access to harm a vulnerable person. “He sought her out. He chose her to prey on,” Reeder said, noting that Sheikh checked the woman’s chart and knew exactly what medicines she had been prescribed. “You know he’s the type of man who would go in multiple times, testing the waters, seeing how far he could go and get back to his normal business after that.”...

Sheikh’s defense lawyer, Stanley Schneider, asked the jury to have mercy on a man whose wife and children had suffered greatly from his actions and who had been punishing himself for five years for this one shameful, erratic act. He said he hoped they would sentence Sheikh, who has no prior felonies, to probation. “The dreams of a man, the childhood dream to become a doctor, were shattered by his conduct. He destroyed his own dreams,” Schneider said. “What he has done to himself and his family is punishment. They are serving his sentence with him. His children are serving his sentence with him.”...

Prosecutors respect the process that rendered the result, said Dane Schiller, a spokesman for District Attorney Kim Ogg. “After being presented all the evidence, the jury convicted this man of rape and decided that he should be sentenced to 10 years of probation,” Schiller said. “The jury voted on behalf of the community to determine his sentence, and although prosecutors sought prison time, we respect this process, and the jury’s decision, which carries with it a lifetime of registering as a sex offender.”...

Both the victim, who is now 32, and the former doctor took the stand during the eight-day trial, providing contradictory accounts of what happened the night of Nov. 2, 2013. The victim said a doctor came to her bedside in the dark and began touching her breasts during a chest exam. She said she was weak, sore and confused, and tried to summon a nurse with the call button. The man returned two more times, and raped her without using a condom.

Sheikh said the patient took his hand and placed it on her breasts. He was intrigued by her breast implants and returned to her room again. At this point, he testified, she began touching his genitals and demonstrated with her body language that she wanted to have sex with him. He said he knew it was a breach of his marriage vows and the Hippocratic oath, but he succumbed to his impulse. He told jurors he understood that it was consensual sex....

One factor that could have impacted what some saw as a lenient sentence was the testimony from his wife, brother and family friends, who spoke about his vital role as the father of four children. Attorney Paul Schiffer, a former prosecutor who has devoted more than four decades to defending people charged with sex offenses, said he thought Sheikh was fortunate.  “Defendants who take the stand and deny they’re guilty statistically are in a worse position to get probation,” Schiffer said. “But various factors, including their history while on bond and the impact incarceration could have on their own children can be a significant factor.”

He and Kiernan, who also defends people accused of rape, said it also may have been the case that jurors had residual doubt about his culpability. Kiernan suggested there was another important factor jurors may have mulled over. “The real question is whether the best interest of the defendant and society are served by sentencing him to the penitentiary,” he said.

In trying to understand this outcome, I wonder if the jury might also have been influenced by the fact that the defendant here is subject to a lifetime on the sex offender registry.  (I assume Texas law allows the jury to be informed of this fact; judges certainly know this fact when deciding on a sentence in a serious sex offense case.)

August 20, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (12)

"America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"

The title of this post is the title of this notable and timely new paper authored by Leo Beletsky and now available via SSRN.  Here is its abstract:

Nearing the end of its second decade, the overdose crisis in the United States has gone from bad to worse.  Despite the advent of a supposed “public health” approach to this epidemic, progress on scaling up evidence-based prevention and response measures remains slow.  Meanwhile, criminal law and its enforcement continue to dominate the arsenal of policies invoked to address the crisis.

This Article examines the surging popularity of one such approach. Now on the books in the majority of U.S. states and federally, drug-induced homicide laws and their analogues implicate dealers in accidental overdose fatalities.  By engaging criminal law theory and empirical legal research, I articulate an interdisciplinary instrumentalist critique of these measures in response to the overdose crisis.  Data systematically extracted from reports on 263 drug-induced homicide prosecutions informs concerns about facial and as-applied defects.  Patterns identified suggest rapid, accelerating diffusion in these prosecutions in many hard-hit jurisdictions; pronounced enforcement and sentencing disparities by race; and broad misclassification of drug-using partners, family members, and others as “dealers.”

Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events.  This analysis illustrates an urgent opportunity to critically re-assess the architecture and mechanisms of drug control in the U.S., reframing criminal justice reform as a public health imperative vital to improving the response to the worst drug crisis in America’s history.

UPDATE: Over at The Crime Report, this short report discusses this article under the headline "Prosecuting Dealers for Opioid Deaths Called ‘Bad Justice Policy’."

August 20, 2018 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Exploring what neuroscience may mean for criminal justice

Last week brought these two notable pieces in response to some recent research on psychology, neuroscience and the law.  Here are links and brief excerpts:

From Andrew Calderson at The Marshall Project, "Dangerous Brain: Can neuroscience predict how likely someone is to commit another crime?"

Over the past two decades, brain scans and other neuroscientific evidence have become commonplace in courtrooms. So much so that a defendant can file an “ineffective assistance of counsel” claim if his or her lawyer fails to introduce relevant brain tests. And defense lawyers ordinarily submit brain imaging to bolster claims of their clients’ incompetency or insanity.

Still some legal scholars and attorneys decry the growing presence of neuroscience in courtrooms, calling it a “double-edged sword” that either unduly exonerates defendants or marks them as irredeemable future dangers. “But that’s not right,” said Deborah Denno, a professor and director of the Neuroscience and Law Center at Fordham University Law School, who conducted an analysis of every criminal case that used neuroscientific evidence from 1992 to 2012.  Her analysis showed that brain evidence is typically introduced to aid fact-finding with more “complete, reliable, and precise information.”  She also showed that it is rarely used to support arguments of future dangerousness.

To date, neuroprediction has not been admitted into the courtroom or parole hearings. Some scholars, like Thomas Nadelhoffer, a fellow at the Kenan Institute for Ethics at Duke University, who popularized the term neuroprediction, argue that the science is reliable enough to integrate with other risk assessments.

From Dane Stallone at The Crime Report, "How Neuroscience is Reforming Criminal Justice"

In the courtroom, testimony or evidence about abnormalities or damage to a defendant’s brain has been used to assess the level of responsibility for criminal behavior. But new research into how the brain works is contributing to innovative strategies for reducing recidivism and developing alternatives to incarceration.

The Mind Research Network, a non-profit based in Albuquerque, N.M., has been on the forefront of discovering how the brains of psychopaths and violent offenders differ from the average person’s.  Psychopaths make up a substantial part of prison population and are 20 to 25 times more likely to be in prison than non-psychopaths.  Dr. Kent Kiehl, a lead researcher for the network, says the research can help target appropriate treatment for example, for youths who have demonstrated violent behavioral traits.  “This will improve our ability to predict which kids are high-risk, and how to individually tailor treatment to help kids change,” he told The Crime Report

August 20, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (2)

Thursday, August 16, 2018

"Tradeoffs Between Wrongful Convictions and Wrongful Acquittals: Understanding and Avoiding the Risks"

The title of this post is the title of this interesting-looking new paper authored by Paul Cassell now available via SSRN. Here is this abstract:

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty.

In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points.  First, in Part I, I turn to Professor Laudan’s policy proposal for reducing the number of wrongful acquittals — e.g., lowering the prosecution’s burden of proof at trial for previously-convicted felons to clear and convincing evidence. This proposal is unconstitutional under existing Supreme Court precedents, which interpret the Constitution to require the prosecutor to prove a defendant’s guilty by proof beyond a reasonable doubt.  And in addition, Laudan has failed to demonstrate that his proposal is cost-beneficial because he has not persuasively articulated a way to weigh the costs of wrongful convictions against those of wrongful acquittals. But I offer a “friendly amendment” to Laudan’s idea. It should be possible to capture almost all of the benefits of his proposal by placing violent felons on extended periods of parole or supervised release — a condition of which would be that they not commit new crimes.  Then, when a previously-convicted felon is arrested for a new crime, he could be tried for a parole violation rather than given a new trial.  Supreme Court precedent allows parole violations to be tried under a lower burden of proof. Reconfigured in this way, there are strong reasons for thinking that the proposal might well be a cost-beneficial way of reducing wrongful acquittals.

In Part II, I challenge Professor Zalman’s claim that he is truly writing from an innocentric perspective.  Someone proceeding from this vantage should be willing to endorse a criminal justice reform measure if it meets three criteria: first and most important, it reduces wrongful convictions of the innocent; second, it does not reduce (and ideally would increase) the number of guilty persons convicted; and third, it should not significantly impair any other competing values.  With these evaluative criteria in mind, Zalman appears to be a mere fair-weather friend of the innocent, as he does not appear to truly privilege innocence over other competing values. In contrast, my reform proposals (which Zalman is reluctant to endorse) reorient the criminal justice system away from adjudicating procedural issues and toward adjudicating substantive issues of guilt or innocence.  The truly innocent will benefit in a system that values substance over procedure — and someone who truly holds an innocentric perspective should endorse reforms that move the criminal justice system in that direction.

August 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5)

Wednesday, August 15, 2018

"The American Execution Queue"

The title of this post is the title of this new interesting article by Lee Kovarsky now available via SSRN. Here is its abstract:

The modern death penalty presents a puzzle: law and norms heavily constrain how American jurisdictions impose death sentences, but not how they select death-sentenced inmates for executions.  In this Article, I explain why this strange void persists, argue that its presence undermines equality, and offer workable institutional responses. In short, I advance a comprehensive theory of the American execution queue — the process by which death penalty jurisdictions decide which condemned inmates will actually die.

My first objective is explanatory.  Because executing a death-sentenced inmate now entails both significant litigation and extensive coordination among under-motivated state institutions, the process takes ten times as long as it did fifty years ago.  Modern executions have become “scarce,” as American jurisdictions simply cannot kill all of their condemned offenders.  Even though the state must make choices, there are no rules for choosing.  Because there is little consensus around decision-making criteria, the process operates with few constraints.  By the time the state must decide which condemned inmates to execute, the capacity of familiar decision-making criteria to meaningfully sort inmates by death-worthiness — things like offense conduct, blame, or future danger — has been exhausted during prior phases of the capital punishment sequence.

My second objective is normative.  I specify several preferred institutional design strategies, anchored to interests in legitimacy, transparency, fairness, and equality.  First, jurisdictions should centralize the process by which they select death-sentenced inmates for executions; localities should have no role in setting execution dates.  Second, a centralized entity should engage in administrative-law-like rulemaking in order to develop transparent, legitimate selection criteria.  Third, jurisdictions should separate the power to determine execution priority from the power to schedule execution dates.  By shifting to a centralized process grounded in transparent rulemaking and rational decision-making criteria, jurisdictions can curb the arbitrariness that plagues the existing system.

August 15, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 14, 2018

High-profile drug arrest of billionaire addict spotlights issues of what is "trafficking" and who is a "victim" and "recidivist"

A high-profile drug arrest in Las Vegas late last week presents a high-profile setting to explore all of the legal uncertainty that necessarily surrounds the modern drug war.  This CBS/AP story, headlined "Tech billionaire Henry Nicholas facing drug trafficking counts in Vegas," provides some of the basics:

Tech billionaire and advocate of crime victims Henry T. Nicholas III is facing drug counts after being arrested along with a woman Tuesday at a Las Vegas Strip casino-resort. Nicholas was arrested on suspicion of trafficking heroin, cocaine, meth and ecstasy, Las Vegas police officer Larry Hadfield said Thursday. He added police responded to the casino-resort following a report from security, which had found contraband in a room [this local piece provides more details of the search and seizures]....

The woman arrested with Nicholas was identified as Ashley Fargo, reportedly the ex-wife of an heir to the Wells Fargo fortune. Hadfield said she faces the same counts as Nicholas. Court records show she has also been released on her own recognizance. Records for the pair show a court hearing scheduled for September.

Attorney and legal analyst Alex Kazarian tells CBS Los Angeles it's likely Nicholas didn't intend to traffic drugs -- but his intent may not matter. "It sounds like his biggest crime is being an addict," Kazarian said. "He's a billionaire. He's not a person that's trying to make money off of drugs. He's a person that's trying to make friends off of drugs. Unfortunateley, the way the laws are written, if you're giving away drugs or if you're selling drugs, you're trafficking."

Nicholas co-founded high-tech chipmaker Broadcom Corp. in 1991 and resigned as president and CEO in 2003. In 2008, he was indicted on narcotics and securities fraud charges. The charges in the securities case were dismissed in 2009 and the narcotics case in 2010.

The billionaire is an advocate for crime victims and has bankrolled ballot measures in the U.S. to guarantee them and their family members some rights. The so-called "Marsy's Law" victims' bill of rights is named after Nicholas' sister, Marsalee "Marsy" Nicholas, a California college student who was stalked and killed in 1983 by an ex-boyfriend.

Five states - California, Ohio, Illinois, North Dakota and South Dakota - have a Marsy's Law on their books.... In Nevada, Marsy's Law will appear on the ballot in November as a legislatively referred constitutional amendment, after the measure was approved during the 2015 and 2017 legislative sessions, as required by law. Nevada Attorney General Adam Laxalt, Clark County Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson have previously endorsed the measure.

As people who work in the drug policy and reform space know well, the dividing line between being a "drug possessor" and a "drug trafficker" can often be a thin one and this story seems to effectively highlight this reality. Moreover, given the extraordinary work that Nicholas has done to promote victim involvement in the criminal justice system, this case provides an interesting setting to explore who can and should be able to claim to be a victim of a "drug trafficker."  In addition, here are some more details about Nicholas's prior involvement with drug charges from this local piece:

In a 2008 federal indictment, Nicholas was accused of possessing and conspiring to distribute drugs, including ecstasy, cocaine and methamphetamine. According to federal court records, he was accused of distributing and using drugs on a private flight between Orange County and Las Vegas, “causing marijuana smoke and fumes to enter the cockpit and requiring the pilot flying the plane to put on an oxygen mask.”  The charges against him were dropped in 2010, court records show.

Because charges were drop in the prior case, Nicholas would not qualify as a repeat drug offender subject to recidivist sentencing enhancements. But I cannot help but wonder why and how prior federal drug distribution charges were dropped against him, while also thinking somebody else might get labelled a serious drug offender with this kind of history without Nicholas's legal good fortunes so far.

August 14, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Victims' Rights At Sentencing | Permalink | Comments (0)

Highlighting how many states have the death penalty in the books without an active execution chamber

John Gramlich at Pew Research Center has this new FactTank piece headlined "11 states that have the death penalty haven’t used it in more than a decade." Here are excerpts (with a few facts highlighted):

Tennessee carried out its first execution since 2009 this month and Nebraska soon may carry out its first since 1997.  The two states underscore the fact that while a majority of jurisdictions in the United States have capital punishment on the books, a considerably smaller number of them use it regularly.

Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not, according to the Death Penalty Information Center, an information clearinghouse that has been critical of capital punishment.  But 11 of the states that allow executions — along with the federal government and the U.S. military — haven’t had one in at least a decade.

Nebraska, in fact, is among seven states that have the death penalty but haven’t carried out an execution in at least 15 years. New Hampshire hasn’t executed an inmate since 1939; the other states in this category are Kansas (last execution in 1965), Wyoming (1992), Colorado and Oregon (both 1997), and Pennsylvania (1999).  Executions have occurred somewhat more recently — though still more than a decade ago — in California, Montana, Nevada and North Carolina (all in 2006).

The last federal execution also took place more than 15 years ago, in March 2003.  While the U.S. military retains its own authority to carry out executions, it hasn’t done so since 1961.

All 11 states that have the death penalty but haven’t used it in at least a decade have inmates on death row, as do the federal government and U.S. military.  The size of these death row populations ranges from just one inmate each in New Hampshire and Wyoming to 744 in California, which has by far the largest death row in the nation.

California’s death row has grown by nearly 100 inmates, or 15%, since January 2006, when it carried out its last execution, and by nearly 30% since 2000, according to the NAACP Legal Defense and Educational Fund, which tracks death row populations for all states.  The increase reflects the fact that California juries have continued to sentence convicted defendants to death even as executions themselves have been on hold in recent years amid legal and political disputes....

The federal government’s death row has also grown substantially since the last federal execution.  There are currently 63 federal inmates sentenced to death, up from 26 in January 2003 (just before the federal government’s most recent execution).

I have highlighted the federal piece of this notable story of execution desuetude because I had thought that Prez Donald Trump and AG Jeff Sessions might seriously try to make America execute again.  But I have not seen any effort or even any discussion by federal officials to have any federal death sentences actually carried out.  As I have noted before, this Death Penalty Information Center list of federal death row prisoners reveals that some sentenced to death have been languishing on death row for a full quarter-century and a number of others have been that for at least two decades.  Because I doubt that Prez Trump and AG Sessions are secret abolitionists, I suspect that there is something going on behind the scenes that is keeping federal justice delayed.  But I still find it notable and a bit curious that the federal death penalty still now does not really exist, practically speaking.

August 14, 2018 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4)

Monday, August 13, 2018

"Algorithmic Risk Assessments and the Double-Edged Sword of Youth"

The title of this post is the title of this new paper authored by Megan Stevenson and Christopher Slobogin now available via SSRN. Here is the abstract:

At sentencing, youth can be considered both a mitigating circumstance because of its association with diminished culpability and an aggravating circumstance because of its association with crime-risk.  In theory, judges and parole boards can recognize this double-edged sword phenomenon and balance the mitigating and aggravating effects of youth. But when sentencing authorities rely on algorithmic risk assessments, a practice that is becoming increasingly common, this balancing process may never take place.

Algorithmic risk assessments often place heavy weights on age in a manner that is not fully transparent -- or, in the case of proprietary “black-box” algorithms, not transparent at all.  For instance, our analysis of one of the leading black-box tools, the COMPAS Violent Recidivism Risk Score, shows that roughly 60% of the risk score it produces is attributable to age.  We argue that this type of fact must be disclosed to sentencing authorities in an easily-interpretable manner so that they understand the role an offender’s age plays in the risk calculation.  Failing to reveal that a stigmatic label such as “high risk of violent crime” is due primarily to a defendant’s young age could lead to improper condemnation of a youthful offender, especially given the close association between risk labels and perceptions of character and moral blameworthiness.

August 13, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Big new Third Circuit opinion sorts through various post-Johnson habeas ACCA headaches

A helpful readers alerted me to a lengthy opinion handed down this morning by a Third Circuit panel in US v. Peppers, No. 17-1029 (3d Cir. Aug. 13, 2018) (available here).  I suspect only hard-core Johnson-habeas-ACCA fans will read all 48 pages of this notable ruling, and its introduction helpfully summarizes what is to be found within:

Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm.  That was the mandatory minimum under the Armed Career Criminal Act (“the ACCA” or “the Act”), and the District Court imposed it because of Peppers’s previous convictions.  Peppers now challenges that sentence as unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a clause of the ACCA – the “residual clause” – as unconstitutionally vague.  He argued in District Court in a motion under 28 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause.  But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment.  The District Court denied Peppers’s second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson.  Because we disagree with the District Court’s conclusions, we will vacate its decision and remand the case for further proceedings.

Five holdings lead to our remand.  First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause.  Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson.  Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on postsentencing cases (i.e., the current state of the law) to support his Johnson claim.  Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such.  Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction.  We will therefore vacate the District Court’s order and remand for an analysis of whether the error that affected Peppers’s sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions.

August 13, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Wednesday, August 01, 2018

Office of Inspector General issues "Review of the Department’s Clemency Initiative"

A couple of helpful readers made sure I did not miss today's release of this big new report from the Justice Department's Office of the Inspector General titled simply "Review of the Department’s Clemency Initiative." Here is just the very start of its "Results in Brief":

We found that the Department did not effectively plan, implement, or manage the Initiative at the outset. However, subsequent actions by Department leadership enabled the Department to not only meet its goal of making recommendations to the White House on all drug petitions received by the deadline of August 31, 2016, but also to make recommendations on over 1,300 petitions received by OPA after the deadline. In total, as a result of the Initiative, the Department made recommendations to the White House on over 13,000 petitions, resulting in 1,696 inmates receiving clemency.

Our review identified several shortcomings in the Department’s planning and implementation of the Initiative. Because of philosophical differences between how the Office of the Deputy Attorney General (ODAG) and OPA viewed clemency, Department leadership did not sufficiently involve OPA in the Initiative’s preannouncement planning. Moreover, despite the Department’s stated commitment to provide OPA with the necessary resources, the Department did not sufficiently do so once the Initiative began.

The Department also did not effectively implement the Initiative’s inmate survey, which was intended to help the Department identify potentially meritorious clemency petitioners. For example, rather than survey only those inmates who likely met the Initiative’s six criteria, the survey was sent to every Federal Bureau of Prisons inmate. As a result, CP 14 and OPA received numerous survey responses and petitions from inmates who clearly did not meet the Initiative’s criteria, thereby delaying consideration of potentially meritorious petitions. We found other problems with the survey, resulting in OIG’s issuance of a Management Advisory Memorandum to the Department, which is attached as an appendix to this report.

Further, the Department experienced challenges in working with external stakeholders to implement the Initiative. For example, the Department did not anticipate that CP 14 attorneys would have challenges in obtaining inmate Pre-sentence Investigation Reports and, as a result, it took almost a year before the Administrative Office of the U.S. Courts allowed CP 14 attorneys to access them, which hampered CP 14’s ability to make timely eligibility determinations. We also found that the Department and CP 14 had very different perspectives regarding CP 14’s role in the Initiative. In particular, while the Department expected CP 14 to focus on identifying and submitting petitions on behalf of inmates who were strong candidates for clemency, CP 14 instead viewed its role as assisting and advocating for any inmate who wished to file a petition. As a result, the Department believes CP 14 took longer to complete its work.

Because I am on the road, I fear I will not have a chance to review and comment on this important and valuable new report. But what I have already read reinforces all my long-standing concerns about the Department of Justice having a central role in the clemency process and my long-voiced contention that all Prez should take clemency powers and possibilities seriously from the very moment they are elected to serve in the Oval Office.

August 1, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 31, 2018

Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."

I blogged here about how Justice Kennedy's replacement would likely be a greater supporter of jury trial rights, and I blogged here and here and here about folks noticing Judge Brett Kavanuagh's notable statement in the 2015 Bell case (available here) that "[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial."  But there is still more to this story as we await Judge Kavanaugh's confirmation hearing, and I realized as much thanks to this recent piece at the Brennan Center's website.

The Brennan Center piece noted that Judge Kavanaugh in 2009 testified to the US Sentencing Commission when the USSC was having regional public hearings to hear from stakeholders about federal sentencing.  The Brennan piece expressed concern that Judge Kavanuagh made the case for a return to a mandatory sentencing system in his testimony.  The Brennan analysis did not mention that Judge Kavanaugh in his testimony speaks out against the use of acquitted conduct (at least as a policy matter).  Here are portions of what he had to say in this testimony to the USSC and in follow-up questions:

Whether they are mandatory or advisory, I think acquitted conduct should be barred from the guidelines calculation. I don't consider myself a particular softy on sentencing issues, but it really bothers me that acquitted conduct is counted in the Guidelines calculation. I have written about this, and I think I am not alone.... It is just very problematic symbolically.

Put aside the substance, because I realize it still can come in on the back end, particularly in an advisory system, but telling a defendant, "Yes, you are acquitted but yes, we are going to calculate that sentence to include that acquitted conduct" just sends the wrong message. It seems to me in too many cases it seems inconsistent with the nature of our system. I would urge careful consideration of that issue.... (transcript pp. 41-42)

[O]ne of the things the guidelines did was to bring into the open, into the sunlight, things that had happened for years that no one knew or didn't think about in the same way, and all of a sudden you are having a precise increase based on acquitted conduct, and people say, "Well, it always happened that way."

Well, okay, but now you are actually seeing it, the actual impact.

As you say, quite rightly, no one understands that in the real world. It fails the common sense test, and it brings disrespect to the process, and it weakens confidence in the judicial process, and maybe you can reason your way from point A to point B to point C logically for why it should be part of the process, but when you take a step back, it just doesn't work, and I think even if it is purely symbolic, the effort to bar the consideration of acquitted conduct; even, in other words, if there is a logical reason to do it and the only reason not to do it is symbolic, symbolism has value in the criminal justice system at times, and I think this is one of those areas where it would be warranted.... (transcript pp. 80-81)

Of course, advocating against the use of acquitted conduct in guidelines calculations to the US Sentencing Commission is not the same as declaring the use of acquitted conduct in guidelines calculations unconstitutional. But this testimony leave little doubt as to Judge Kavanaugh's concerns about this issue, and it provides a reasonable basis for hoping he could bring some useful new perspectives to the Court on some sentencing issues.

Some prior related posts:

July 31, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

After guilty plea, frat member gets 3 months of house arrest and 27 months of probation for role in hazing death of Penn State pledge

As reported in this AP piece, headlined "Penn State fraternity member gets house arrest in pledge death case," a high-profile college campus tragedy led to a notable state sentencing today in the heart of Pennsylvania.  Here are the details:

A Penn State fraternity member who plied a pledge with vodka the night he was fatally injured in a series of falls avoided jail time Tuesday when a judge sentenced him to three months of house arrest.

Ryan Burke, who had pleaded guilty to four counts of hazing and five alcohol violations, apologized to the parents of Tim Piazza, who died in February 2017 after a night of drinking and hazing in the Beta Theta Pi house. Burke said he was “truly sorry” and accepted responsibility for his role in the events that led to Piazza's death from severe head and abdominal injuries he suffered the night he accepted a pledge bid.

Centre County Judge Brian Marshall also gave Burke 27 months of probation, fined him more than $3,000 and ordered 100 hours of community service. “The court was shocked by what happened that night,” Marshall said, adding he was “mindful that there were many involved.”

Burke's defense attorney, Philip Masorti, said afterward he thought the sentence was fair.  “This was an accident that nobody wanted to happen,” he told Marshall. “It led to a tragic death.”

Burke, 21, of Scranton, is the only one so far to plead guilty in the case, in which more than two dozen members of the now-closed fraternity face charges. A hearing for some others is planned for next month, and trial for at least some will be in February.

Prosecutor Brian Zarallo with the attorney general's office said Burke took a leading role in what occurred, as he led the fraternity's effort to recruit new members and physically led them into a drinking station “gauntlet” that began a night of heavy drinking that was captured on the building's elaborate video security system. Piazza “didn't know what was waiting for him,” that night, Zarallo said. “The defendant did. The defendant knew exactly what was waiting for him.”

He played a videotape in which a ball cap-wearing Burke could be identified plying the wannabe members with a bottle of 80-proof vodka, and said Burke seemed nonchalant about Piazza's medical condition after he endured a bad fall down the basement steps. Burke “can't be bothered” and left Piazza for others to deal with him, Zarallo said, describing his actions as callous.

“This is a big joke to these people,” Zarallo said, telling the judge that five pledges vomited that night and one other injured an ankle.

Piazza's parents, who have become anti-hazing advocates, recounted the horror of being summoned to the hospital to find their son with a range of visible and very severe injuries, not far from the death that would soon follow....  Jim Piazza credited Burke for pleading guilty, but noted that occurred after a judge ruled there was sufficient evidence to send the case to county court for trial....

When Burke was first charged in November, he also was accused of involuntary manslaughter, aggravated assault, simple assault and reckless endangerment, but the attorney general's office dropped the most serious charges in April and a district judge subsequently dismissed some other counts.

This other local article reports that prosecutors were asking for three months of imprisonment. I suspect that what prosecutors sought for a defendant who played a leading role, as well as the actual sentencing imposed, might have a big impact on the various charges still facing the other two dozen members of the fraternity.  It is likely that the sentence given to Burke will end up impacting future plea negotiations as well as any sentences that might be imposed on any defendants convicted after a trial.  In tragic incidents like this one in which is it so hard to know just what kind of sentence is "right" in response to unintended harms, I sense it becomes easier for lawyers and judges to gravitate toward sentences already imposed in related cases.

July 31, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

The American Conservative explores "What’s Philly’s DA Got to Do With Me?"

In prior posts here and here, I have highlighted an ongoing series of lengthy articles in The American Conservative that are part of "a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform."    This latest article zeroes in on a notable new figure under the full headline "What’s Philly’s DA Got to Do With Me?: If every city had a Larry Krasner, there might be fewer people in jail who didn't belong there." Here is how the article gets started:

Since taking office he’s stopped prosecuting simple possession of marijuana.  He’s limited civil asset forfeitures only to cases in which there’s a conviction.  He’s directed his assistant district attorneys to include the cost of a prison term in making sentencing recommendations.  Oh, and he’s published a list of 29 local police officers that he views as unreliable witnesses due to their abuse of their powers and other corruption.

For traditional law-and-order types, Philadelphia’s new district attorney, Larry Krasner, might be something of a nightmare.  But for civil libertarians and jail reformers across the political spectrum, he’s putting into practice policies that they’ve been pushing for a long time.

Krasner, who took office in January, styles himself a progressive, but his objectives dovetail closely with those of conservative and libertarian justice reformers.  All share a broader vision of radically reshaping a criminal justice system that is deeply unjust and out of line with American constitutional and moral values.

“I personally think our criminal justice system is thoroughly rotten and it has a number of features that, in my judgment, have so undermined the legitimacy of the criminal justice system and so sharply tilted the playing field in favor of prosecutors and against defendants that is has deprived our criminal justice system of its integrity and its legitimacy,” Clark Neily, the vice president for criminal justice at the Cato Institute, tells The American Conservative.

Prior related posts:

July 31, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Monday, July 30, 2018

A deep dive into various big and little juvenile life without parole stories

The Dublin Review has published this very lengthy discussion of juvenile life without parole sentences under the simple headline "A different season." The lengthy piece is authored by Andrew Purcell, and it cannot be readily summarized. Here is one snippet:

Many of Pennsylvania’s district attorneys have responded to the Supreme Court’s Montgomery decision by striking plea deals with the longest-serving prisoners. Others, in conservative counties, have not. By late September 2017, 173 of the state’s 517 juvenile lifers had been re-sentenced, and 77 paroled for time served. Most of the released prisoners are from Philadelphia, creating a small community of men with the shared experience of being locked up their entire adult lives, adapting to a world that has moved on without them. Courtney ‘Juan’ Boyd, recently released after serving thirty-six years, was calling John to ask about a re-sentencing hearing the previous night for a prisoner called Andre Martin.  At fifteen, Martin shot a police officer in the head from a window at the Wilson Park projects.  He had forty-one years in already, and the prosecution was seeking sixty to life, supported at the hearing by the dead cop’s family and a roomful of police officers.  Judge Barbara McDermott gave him forty-four to life. In three years, the opposing sides will meet again at an equally charged parole hearing, to argue about whether or not Martin should be released.

Each of the fifty states has responded differently to the Montgomery v Louisiana ruling, and there are also variations within states, as district attorneys interpret the concept of ‘permanent incorrigibility’. In Michigan, for instance, prosecutors initially sought new life-without-parole sentences for 236 of the 363 men and women serving mandatory life terms for crimes committed as minors, a clear deviation from the Supreme Court’s intent to reserve the punishment for ‘the rarest of juvenile offenders’. The Oakland County DA has asked for life without parole in forty-four of forty-nine cases; ‘These are young Hannibal Lecters,’ county sheriff Michael Bouchard told the press. In Missouri, teenage lifers are now eligible for parole once they have spent twenty-five years in prison, but of twenty-three who have applied, twenty have been denied. In Maryland, all 271 juvenile lifers are parole-eligible, but no such prisoner has been released in two decades.

All over the country, lawsuits are establishing whether and how Montgomery should affect discretionary sentences. ‘We think the Montgomery standard is impossible [for prosecutors] to beat, in that everyone is capable of rehabilitation given the proper support,’ said Brooke McCarthy of the Juvenile Law Centre. ‘To say that you can never fix someone in the future, no matter what, is such an incredibly difficult standard to reach. Some district attorneys have gotten clever … so rather than asking for life without parole they’re asking for fifty-, sixty-, seventy-five-year minimums.’

July 30, 2018 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Fascinating split Sixth Circuit discussion of how Johnson-invalidated ACCA sentences are to be corrected and reviewed

For those who like to think a lot about federal collateral review procedures and the aftermath of Johnson and sentencing retroactivity (and who doesn't), the Sixth Circuit today handed down a fascinating split panel decision in US v. Nichols, No. 17-5580 (6th Cir. July 30, 2018) (available here).  In Nichols, the defendant succeeded in challenging in the district court his 24-year sentence for a firearm offense under the Armed Career Criminal Act based on the Supreme Court's Johnson ruling that one ACCA provision was unconstitutionally vague.  So far so good.  But here is where it gets interesting:

By the time the district court entered Defendant’s corrected sentence, Defendant had already served twelve years in prison — two years in excess of the ten-year statutory maximum for his firearm offense.  The Guidelines range for Defendant’s conduct, absent the ACCA enhancement, was 51 to 63 months’ imprisonment, which is well below the statutory maximum of ten years.  Based on his belief that a period of over-incarceration can be calculated and credited toward the completion of a consecutive sentence, Defendant asked the district court to impose a Guidelines-range sentence and, in any event, to impose a sentence of a specific term of months.  The district court denied Defendant’s request and instead imposed a corrected sentence of “time served,” which was equivalent to a term of about twelve years’ imprisonment. (R. 52 at PageID #347.) Defendant requested reconsideration, which the district court denied.  Defendant then filed this timely appeal.

Why does the defendant care?  Here is why: "While in prison, Defendant was convicted and sentenced for conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C); possession of heroin by an inmate ... and conspiracy. The district court sentenced Defendant to an additional 151 months’ imprisonment, to be served consecutively to Defendant’s existing 24-year term of imprisonment for the firearm offense."  The defendant here is eager to be fully resentenced on his gun crime to as low a term as possible so that extra time already served will be credited against his drug crime sentence. 

Because the statutory maximum sentence for the defendant's gun crime is only 10 years after the ACCA correction, the majority in Nichols reasonably asserts that "time served" is functionally a 12-year illegal sentence that must be corrected.  Interestingly, the panel also concludes that reasonableness review applies in this corrected sentencing setting, and they also find the time-served sentence procedurally unreasonable for lack of adequate explanation.

Judge Batchelder pens a lengthy dissent in which she laments the way the majority frames and remedies the situation here.  The tail end of her dissent summarizes her concerns with the panel ruling and her suggested solution:

Finally, I question the merit of the majority’s proffered legal doctrine that holds, in three parts: (1) that a time-served sentence equates to a term-of-months sentence in the number of months actually served; (2) that the sentence is illegal when that post hoc term of months exceeds the newly applicable statutory maximum (or, broadly stated, actions that were taken pursuant to a statute are ex post facto unlawful when the statute is retroactively unconstitutional); and (3) the resulting illegal sentence is per se reversible plain error.  So, again, as applied here: any corrected sentence of time served for an inmate who has already served more than the newly applicable 10-year maximum is per se reversible plain error.  Moreover, the inmate must receive a full resentencing sufficient for reasonableness review.

Given the breadth of this holding and the vast number of sentences to which it might henceforth apply, this opinion will doubtless have consequences, foreseeable and unforeseen.  How many corrected sentences will now be per se reversible plain error?  How many inmates, like Nichols, will discover that they have long been unlawfully incarcerated, and what will be the effect of that discovery?  Will they, like Nichols, pursue a time bank or offset?  Or will they seek compensation for that newly discovered unlawful incarceration?  What of an inmate who suffered an injury, committed a crime, or unsuccessfully demanded special accommodations while so incarcerated — how does the calculus change when it is later declared via post hoc stipulation that the inmate was only in prison because he was being held unlawfully?

Rather than holding that the corrected sentence of time served necessarily equates to a term of years equal to the amount of time already served and invoking the legal fictions and consequences that follow, we might be better served by viewing a “time-served sentence” as different in kind from a “term of years sentence,” either of which could satisfy the district court’s discretionary choice of relief under § 2255. That is, of course, an entirely different analysis from the one the majority has undertaken here, though compatible with the approach taken by the district courts that have been resolving § 2255 motions based on Johnson/Welch.

July 30, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Sunday, July 29, 2018

A (partisan) look at some of Judge Brett Kavanaugh's record on criminal justice issues

Over here at the Brennan Center's website, Priya Raghavan has a review of some of the criminal justice decision of new SCOTUS-nominee Judge Brett Kavanaugh under the heading "Open Questions: Brett Kavanaugh and Criminal Justice: Kavanaugh’s record is sparse, but that makes understanding his stance on the issues all the more important."  Here is an excerpt (with links from the original and a little emphasis added):

The rare instances when Kavanaugh sides with defendants are equally telling.  In U.S. v. Burwell, Kavanaugh dissented from a decision that upheld a 20-year sentence enhancement for a defendant who used a machine gun during a robbery. Kavanaugh argued that there was no proof that the defendant knew the gun he used was a machine gun and that the law should require such proof.  But this doesn’t necessarily mean that Kavanaugh was looking out for the little guy. Insisting on such intent requirements — mens rea, in legal terminology — could make it harder for the government to prosecute white-collar criminals, largely benefitting a small segment of affluent defendants. 

Kavanaugh’s views on sentencing are more difficult to parse.  He testified in 2009 that, from a policy perspective, he believed federal sentencing guidelines should be mandatory, rather than advisory, to  limit judicial discretion in sentencing.  He was concerned that advisory guidelines would allow judges to impose their personal views at sentencing, leading to disparate outcomes. But Kavanaugh has on several occasions disagreed with his colleagues and supported lower court judges who gave harsh, above-guidelines sentences with little to no explanation of their reasons for doing so.  In both In re Sealed Case and the recent U.S. v. Brown, where the D.C. Circuit vacated sentences after judges issued harsh, above-guidelines sentences without sufficient explanation, Kavanaugh dissented, calling the majority’s holding in the latter case “confounding.”  Kavanaugh’s statements on sentencing leave us wondering: how much discretion does he think judges should have? 

Kavanaugh has had little chance to opine on those subjects that comprise the hallmarks of Kennedy’s criminal justice legacy, such as the death penalty, juvenile justice, and prison overcrowding. But it seems unlikely that Kavanaugh will follow his old boss’ lead, especially given his alignment with his “first judicial hero” William Rehnquist, whose far-right views on many issues, including criminal justice, fell well outside the mainstream. 

To be sure, conservatives do not always side with law enforcement.  Kavanaugh’s high school classmate and Kennedy clerk colleague, Justice Neil Gorsuch, recently sided with the defendant in Session v. Dimaya, a major ruling that found parts of the immigration law unconstitutionally vague. Kavanaugh could surprise us, too. 

Criminal cases comprise a sizeable portion of the Supreme Court’s docket, and the opinions from them can reverberate down to every encounter with police, as happened with the Miranda warning.  As just one example, this fall the Court will hear Timbs v. Indiana and decide whether the Eighth Amendment prohibition against excessive fines applies to the states, effectively determining how much criminal defendants can be fined. 

Before he is confirmed, the Senate — and the American people — must have a better sense of Kavanaugh’s thinking about criminal justice.  During his confirmation hearings, Senators should ask — and Kavanaugh should answer with specifics — the following questions: 

  • Given the stark racial disparities in the criminal justice system, how would he ensure equality under the law?
  • Does he believe that the meaning of the Constitution, specifically the Eighth Amendment prohibition against cruel and unusual punishment, can change over time? 
  • What is his stance on solitary confinement?
  • What are the limits of police power?
  • What are his beliefs about mandatory minimums and judicial discretion in sentencing?
  • Does he believe that fines and fees levied on criminal defendants should be limited?

I am always deeply troubled by the deeply misguided notion that preserving a serious commitment to mens rea in the criminal law does not help the "little guy," and I find almost comical the assertion that the views of Chief Justice William Rehnquist "fell well outside the mainstream."  Nevertheless, depsite this review being more than a bit too partisan, I am still glad to see it spotlight criminal justice concerns and its suggestion that Senators ask SCOTUS-nominee Kavanaugh a bunch of question about these issues.   And I think the questions I bolded above are on topics that seem to me especially timely.

That said, I think good questions to a SCOTUS nominee should not be about "his stance" or "his beliefs" as if he were seeking an elected office where he would be expected to put policy preferences into action.  Rather, sound and effective questions should focus on the text of the Constitution and existing SCOTUS precedents in order to explore how the nominee's judicial philosophy is likely to find expression as these issues come before the court in the years ahead.  In this post on a Sunday morning about 14 months ago, I gave some examples of how I might structure key questions in the run up to Justice Neil Gorsuch's confirmation hearing:

Some prior related posts:

July 29, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, July 28, 2018

State judge rejects constitutional attack on Tennessee's lethal injection protocol

The state of Tennessee has not conducted an execution in nearly a decade, but it has three scheduled for later this year including one slated for August 9.  The prospect of these executions going forward got more likely this past week after, as reported in this local article, a state judge rejected a suit brought by many death row inmates challenging the constitutionality of the state's lethal injection protocol.  Here are the basics:  

Tennessee can use controversial drugs to execute inmates on death row despite concerns from defense attorneys and experts that doing so is "akin to burning someone alive," a Nashville judge ruled Thursday. The ruling is a blow to 33 death row inmates who had challenged the state's lethal injection protocol, saying it led to cruel and unusual punishment forbidden by the U.S. Constitution. Among them is Billy Ray Irick, who is scheduled to be executed Aug. 9.

But the ruling won't be the final word.  The inmates' attorneys quickly announced they would appeal.

Davidson County Chancellor Ellen Hobbs Lyle issued the 51-page ruling on the case Thursday evening, forcefully denying the inmates' claims and saying they failed to meet two critical bars necessary to overturn an execution method....  "Although dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions," Lyle wrote, echoing an argument made by attorneys for the state....

The inmates, who filed the suit against the state in February, did not argue against the death penalty itself. Instead, they focused on the use of midazolam, the first drug in the state's new protocol, that is meant to put an inmate to sleep before two other drugs stop the heart and lungs.

Experts who testified on the inmates' behalf said midazolam is often ineffective, leaving people awake and aware of the acidic poison that kills them. The experts pulled examples from executions across the country, in which witnesses saw inmates thrashing, moaning and crying as the drugs coursed through their veins. "That is akin to burning someone alive. That is not hyperbole. That is not an exaggeration," said Henry. "That's avoidable."

Lyle acknowledged that the inmates' case included testimony from "well-qualified and imminent experts," and she conceded "the inmate being executed may be able to feel pain from the administration of the second and third drugs."... But, Lyle wrote, the inmates' attorneys did not prove that the three-drug protocol would lead to prolonged periods of "needless suffering," one of the key factors that could lead to unconstitutional torture. She pointed to the relatively brief executions cited by the inmates' attorneys, which ended after an average of 13.55 minutes.

Deputy Attorney General Scott Sutherland, who represented the state and the Department of Correction, tied midazolam to ongoing work to make executions more humane. He pointed to rulings from the U.S. Supreme Court and other judicial panels that upheld executions using midazolam. And he said that the inmates had failed to prove pentobarbital was readily available to be used instead of the three-drug protocol.

Lyle agreed. "It is not enough, the United States Supreme Court has held, for the inmate to claim that the State’s method of execution is cruel and unusual," Lyle wrote. "The inmate must also make a claim in the lawsuit he files and must prove at trial in his case that there is a known and available method to execute him that, in comparison to the State’s execution method, significantly reduces a substantial risk of pain."

The state court ruling referenced in this article is available at this link, and here is a portion of the introduction to the 50-page opinion:

The law of the United States requires that to halt a lethal injection execution1 as cruel and unusual, an inmate must state in his lawsuit and prove at trial that there is another way, available to the State, to carry out the execution.  That is, the inmate is required to prove an alternative method of execution. Glossip v. Gross, 135 S. Ct. 2726, 2732-33 (2015). Absent proof of an alternative method, an execution can not be halted....

Thus, whether a lethal injection method is unconstitutional is a comparative analysis.  To halt a lethal injection execution as cruel and unusual, an inmate must prove not only that there is a better drug for lethal injection but that the better drug is available to the State.  That proof has not been provided in this case.

The Inmates who filed this lawsuit have failed to prove the essential element required by the United States Supreme Court that there exists an available alternative to the execution method they are challenging.  On this basis alone, by United States law, this lawsuit must be dismissed.

July 28, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, July 27, 2018

An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct

In this post earlier this month, I suggested that Justice Kennedy might be replaced by a new Justice more inclined to afford criminal defendants stronger Sixth Amendment rights under Apprendi and Blakely.  And this subsequent post highlighted that new SCOTUS-nominee Judge Brett Kavanaugh authored an interesting opinion a few years ago that expressed concern about the use acquitted conduct to increase sentences.  Against that backdrop, I was interested to see this new Law360 commentary authored by Alan Ellis and Mark Allenbaugh headlined "Sentencing May Change With 2 Kennedy Clerks On High Court." Here are excerpts from the start and end of the commentary:

Shortly before his confirmation just over a year ago, we wrote about what a now-Justice Neil Gorsuch could mean for federal sentencing.  In particular, we reviewed his Tenth Circuit opinion in United States v. Sabillon-Umana, wherein then-Judge Gorsuch, a former clerk for now-retiring Justice Anthony Kennedy, questioned the constitutionality of judicial fact-finding at federal sentencing, as opposed to fact-finding by a jury.  Known as “relevant conduct,” judge-found facts — which often include uncharged and even acquitted conduct — drive federal sentencings, often increasing terms of imprisonment by years and even decades.  As it turns out, another former Kennedy clerk, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — who recently was nominated by President Donald Trump to take the retiring justice’s seat on the court — also shares Justice Gorsuch’s concern.  Accordingly, for the reasons discussed below, should Judge Kavanaugh be confirmed, we believe the “Kennedy clerks” will likely lead the court to finally rein in relevant conduct by holding unconstitutional the use of uncharged and acquitted conduct to enhance federal sentences....

Should Judge Kavanaugh be confirmed, we believe it quite likely that, based on his prior jurisprudence, the current manner in which relevant conduct or at least acquitted conduct is used to enhance sentences will soon be determined to be unconstitutional.

Though I certainly hope that new Justices could usher in a big changes to the modern federal sentencing system, I do not share these authors' view that such changes are "quite likely." In particular, finding unconstitutional any use of "uncharged" conduct at sentencing would be a real sea-change for lots of sentencing systems and practice, and I think a number of Justices would be hesitant to take Sixth Amendment doctrines this far.  But I still like this constitutional optimism even if I do not fully share it.

A few prior related posts:

July 27, 2018 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)