Tuesday, October 17, 2017

Busting the "myth of the progressive prosecutor"

Much advocacy and debate over modern criminal justice reform has come to give particular attention to the role of prosecutors.  In turn, it sometimes seems that some reform-minded folks seem to believe or suggest that getting the right persons to serve as prosecutors can be a kind of modern magic criminal reform elixir.   Against that backdrop, I found this new New York Times op-ed refreshing and important.  It is headlined "Cyrus Vance and the Myth of the Progressive Prosecutor," and here are excerpts:

[T]he Manhattan district attorney, Cyrus Vance Jr., ... is considered one of America’s most progressive prosecutors and has the accolades to prove it.  In 2015, he helped create the Institute for Innovation in Prosecution at the John Jay College of Criminal Justice.  Two years earlier, Attorney General Eric Holder gave him an award for having developed a partnership between local youths and law enforcement aimed at reducing violence.

Sure, he often says the right thing, as when he told New York Law School’s graduating class in 2015 that he had recognized racism in the criminal justice system “long before the term ‘mass incarceration’ entered the general conversation,” or when he wrote in the black-owned Amsterdam News last month that he has helped to reduce “unnecessary contact with the criminal justice system” among Manhattanites.

However, like many prosecutors across the country who get credit for changing the game while continuing draconian practices, Mr. Vance simply isn’t the reformer he paints himself as.  Look at the data. Manhattan holds less than 20 percent of the city’s population, but on an average day, almost 40 percent of Rikers Island inmates are from the borough.  This disparity has been attributed in part to his office’s zealous prosecution of misdemeanors.  As of 2015, Mr. Vance was more likely to prosecute a misdemeanor charge than any other district attorney in New York City.

And despite lamenting racism in the criminal justice system, Mr. Vance perpetuates worrisome racial disparities.  A 2014 Vera Institute of Justice study found that black and Latino defendants prosecuted by Mr. Vance’s office were more likely to be detained at booking, compared with similarly situated white defendants.  And last year, 51 percent of marijuana cases involving black defendants in Manhattan ended in conviction, while only 23 percent involving whites did.

Nor is Mr. Vance the only faux reformer.  The New Orleans district attorney, Leon Cannizzaro, claims that his office “has worked aggressively to reform New Orleans’s criminal justice system.”  But his actions indicate that he values convictions over his community.  He has locked up rape victims who refused to testify against their assailants and has served fake subpoenas to pressure witnesses to talk. Mr. Cannizzaro defended a sentence in which a 17-year-old was sent to prison for 99 years for an armed car robbery, even though no one was injured during the crime.  His office tried to sentence a man to 20 years in prison for stealing $31 worth of candy.

The Los Angeles district attorney, Jackie Lacey, is a Democrat who has benefited from the public’s perception that she is a reformer.  This is something she has fed herself, bragging to a Los Angeles Sentinel reporter that she has read “The New Jim Crow” by Michelle Alexander and has seen Ava DuVernay’s documentary “13,” about the connection between slavery and mass incarceration.  But Ms. Lacey’s values have consistently lagged behind those of her constituency.  In ballot initiatives, Los Angeles County residents supported shorter sentences for low-level and nonviolent property and drug crimes and wanted to legalize recreational marijuana use for adults. Ms. Lacey opposed both. And although the county voted in favor of abolishing the death penalty, she continues to support it. Last year there were just 31 death sentences nationwide. Ms. Lacey’s office secured four of them....

So it’s especially frustrating that many of those who are praised as change-makers are at best making bite-size improvements.  And because they say the right things, the public gives them a pass: Mr. Vance is running unopposed for a third term, and Ms. Lacey also ran unopposed in her last election.

The progressive bombast is meaningless if prosecutors continue to promote the same harsh practices behind the scenes. Instead, voters must look closely at their policies and hold them to high and specific standards.  We should ask: Are prosecutors opposing new mandatory minimum sentences during legislative debates? Have they declined to request cash bail in a vast majority of cases? Are they keeping children out of adult court and refusing to seek life-without-parole sentences for them?

Over 1,000 prosecutors will be up for election next year in places like Dallas, San Diego, Seattle, Oakland, Calif., and Charlotte, N.C. Voters ought to make sure the people who win these crucial races are actual criminal justice reformers, not just people who say they are.

Over at Simple Justice, Scott Greenfield here also gives attention to this notable op-ed by calling out some more current and former prosecutors for their questionable reform credentials. He also adds these sharp comments that reflect my view that reforming the law is even more critical than reforming who applies the law (though that matters, too):

[E]ven the [progressive prosecutors] who aren’t taking bribes, who can quote Maya Angelou from memory, are still prosecutors. To some extent, the conflict is inherent in the job; prosecutors prosecute based on law. They are not the avenging angels of social justice, but just avenging angels.

The irony of calling for more criminalization in one place (say, revenge porn) while bemoaning criminalization in others (say, marijuana) eludes many. But over-criminalization only seems to register in progressive minds based on fashion trends, forgetting that the crimes they hate today were once just as fashionable as the crimes they love today.

And this is where they fail to grasp how their cries for “justice” make little sense, since “justice” is mostly a matter of whose sad story prevails, the accused or the victim, at any given moment. Ask any victim about “justice” and there is a good chance their foremost concern won’t be educational opportunities in poor urban schools.

But what Duffy makes clear is that there are real ways in which prosecutors can exercise their authority, their discretion, to bring reform to their jobs, by eliminating false confessions, suggestive identifications, Brady violations, junk science, needless bail, abuse of power, covering for killer cops and the big one, not going for death.

October 17, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, October 16, 2017

SCOTUS grants cert on three criminal procedure issues

Before taking a break for the next two weeks, the US Supreme Court this morning issued this new order list with grants of certiorari in four new cases.  There of these cases involve criminal procedure matters, and here are brief accounts via SCOTUSblog (with links thereto):

Currier v. Virginia:  Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

United States v. Microsoft Corp.:  Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.

Dahda v. United States:  Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge's territorial jurisdiction.

None of these cases get my sentencing blood racing, and the most interesting aspect of the order list for hard-core sentencing fans might be a short opinion by Justice Sotomayor (joined by Justices Ginsburg and Breyer) dissenting from the denial of certiorari in a couple of Florida capital cases in which defendants argued "that the jury instructions in their cases impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory."  

October 16, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Colorado judge finds state's statutory response to Miller unconstitutionally favors certain juve defendants at resentencing

This local article reports on an interesting (and quirky?) ruling from a Colorado state judge last week finding constitutional problems with how the state responded to the Supreme Court's Eighth Amendment ruling in Miller precluding any mandatory LWOP sentencing for juvenile murderers.  The full headline of the article provides the basics: "Colorado law giving a break to some serving life for crimes committed as juveniles is unconstitutional, judge rules: Judge Carlos Samour Jr. ruled state can’t set preferential sentence for offenders convicted of felony murder." Here are more particulars: 

Part of a 2016 Colorado law that offers special sentencing considerations for some of the 50 people serving life without parole for crimes they committed as juveniles has been ruled unconstitutional by an Arapahoe County judge. Chief District Court Judge Carlos Samour Jr. this week entered his ruling in a case filed by Curtis Brooks, who was sentenced in 1997 to life in prison without parole after his conviction for felony murder.

The law, Samour ruled, gives preferential treatment to Brooks and 15 other offenders convicted of felony murder, offering them reduced sentences of 30 to 50 years in prison, while 34 other convicts serving life without parole could get new sentences of life in prison with the possibility of parole.  “Under the circumstances present, the court finds that the challenged provisions grant the 16 defendants a special or exclusive privilege,” his ruling says.

Brooks had applied to have his sentence reduced under the law, which the legislature passed last year. Felony murder holds defendants liable for first-degree murder if they commit or attempt certain felonies, such as burglary or robbery, and someone dies “in the course of or in furtherance of the crime.” In Brooks’ case, the owner of a car was killed by someone else as they tried to steal the vehicle. Brooks was 15.

Although Samour’s ruling is very well-reasoned, it is not binding precedent, said Ann Tomsic, chief deputy attorney for the 18th Judicial District.  Other judges probably will read Samour’s ruling and base their sentencing decisions on what he wrote, she said.... Brooks’ attorneys, including Dru Nielsen, said they could not comment on the facts of the case. Nor would they say whether they would appeal Samour’s decision....

Samour concluded that because the portion of the 2016 law applying only to those convicted of felony murder is unconstitutional, he must sentence Brooks to life in prison with the possibility of parole.

The Colorado legislature said juveniles convicted of felony murder cannot be sentenced to life without parole. Had lawmakers passed a bill that applied equally to all people convicted as an adult for crimes committed as a juvenile, it would have been constitutional, Samour said.  “What the legislature could not do, however, is what it, in fact, did: arbitrarily single out the 16 defendants and bestow preferential treatment upon them,” Samour ruled. Emphasizing his point, he wrote that the legislature cannot act as a sentencing court or a parole board.

I was unable to find on-line the formal opinion in this case, but in doing a bit of research I found this other local Colorado article from August reporting on a similar decision by another state judge which explains that Colorado prosecutors are apparently the ones objecting to the new Colorado statutory rule providing for a lower resentencing range for juveniles previously convicted of only felony murder. Here is how this other article explains the legal dynamics seemingly in play:

In his ruling, Epstein found that the state Legislature exceeded its authority when it provided the possibility of a 30- to 50-year sentence for felony murder convicts. He granted a motion by the El Paso County District Attorney's Office that attacked the law on procedural grounds, arguing that the sentencing range is unconstitutional because the reduced sentence wouldn't be available to anyone convicted of felony murder before or after the 16-year period. One of Medina's attorneys, Nicole Mooney, said prosecutors in at least three other jurisdictions have filed similar motions, and suggested that prosecutors' success in El Paso County could encourage more challenges — and embolden judges to grant them.

Prosecutor Jennifer Viehman, who mounted the successful challenge, said the 2016 law violated the state Constitution's provisions for special legislation by creating a "closed class" of beneficiaries. "You can't just single out a little special class of people, and make laws just for them," she said. "That's what the judge agreed with." Without the chance for parole after 30 years, then only one sentence is available — life in prison with the chance for parole after 40 years.

I surmise from this second article that judges are finding the distinct resentencing provisions for those convicted of felony murder to be a kind of problematic "special" legislation under Colorado constitutional law. Without expertise in state constitutional law, I cannot quite be sure if that is a sound or suspect conclusion.

UPDATE A helpful reader sent me a copy of the 48-page opinion in the Brooks case, which can be downloaded below and has the following section in its introductory paragraphs:

For the reasons articulated in this Order, the Court finds that the defendant must be resentenced, but concludes that the statutory provisions authorizing a determinate prison sentence of thirty to fifty years with ten years of mandatory parole are invalid because they constitute prohibited special legislation under the Colorado Constitution. The Court, therefore, grants the People’s motion to declare the relevant statutory provisions unconstitutional and denies the defendant’s request for a thirty-year prison sentence with ten years of mandatory parole.  In light of these rulings, and based on the legislature’s intent, the Court determines that the defendant must be resentenced to a term of life in prison with the possibility of parole after forty years.

Download Brooks - Post-Conviction Order

October 16, 2017 in Assessing Miller and its aftermath, New USSC crack guidelines and report, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, October 15, 2017

LWOP+ sentence imposed for impaired driver who killed two in Florida

Long-time readers know I am sometimes inclined to complain about repeat drunk drivers getting lenient sentences unless and until they hurt someone.  But once an impaired driver starts hurting or killing, sentences then can often get quite severe.  A helpful reader alerted me to this notable local story from Florida reporting on the severest possible sentence imposed on an impaired driver in Texas headlined "Trucker gets life in prison on DUI charges from crash that killed two Naples women." Here are excerpts with emphasis on the sentencing particulars:

It was an impact statement about a moment of impact. “In one single second, my best friend, my wife .. my entire world came crashing down,” Dan Jenkins said, describing the horror as he watched a Kenworth tractor slam into a car driven by his wife on a rural Central Florida road in 2011. And it had the desired impact.

Circuit Court Judge Marcus Ezelle sentenced Michael John Phillips, 52, to life in prison plus 15 years for DUI manslaughter in the deaths of Jennifer Jenkins, 35, and Kathleen O’Callaghan, 34.

The two friends from their days as schoolgirls in Naples were killed as they drove toward Orlando for the birthday party of another friend. Dan Jenkins was following in a second vehicle, the couple’s 2-month-old daughter with him.

Phillips, found guilty by a Hardee County jury in August, could have been sentenced to as little as 25 years, according to state sentencing guidelines. But eight family members and friends gave victim impact statements at Friday’s sentencing, each asking Ezelle to impose the maximum penalty of life in prison. Ezelle went symbolically further, pronouncing a life sentence for one count of DUI manslaughter and an additional 15 years for the second....

In Florida, judges must sentence defendants based on a score tabulated in a pre-sentence investigation. Phillips’ score was 364.4. Had it been 363 or lower, a life sentence would not have been an option. Factors that boosted his score included drug arrests dating 30 years, a refused drug test while free on bond in this case and then absconding on that bond, which delayed the case for several months while authorities searched for him.

Defense attorney Kelley Collier asked Ezelle for a sentence of less than life in prison, in part because Phillips was just over the points threshold. He said Phillips, who tested positive for methamphetamine in his system, basically fell asleep at the wheel of the truck. “He does not have a conscious recollection of the accident,” he told Ezelle.

Falling asleep at the wheel is not a reaction one would expect from using methamphetamine, Collier said. “I would argue that the facts are not the kind of facts that would warrant that kind of (life) sentence,” Collier said.

Ezelle said the fact that Phillips didn’t intend to cause the crash wasn’t relevant. The manslaughter conviction, by its nature, presumes the guilty party didn’t premeditate the crime. Instead, the case was about creating risk that endangered others. “Mr. Phillips, by his decisions, weaponized a commercial vehicle,” Ezelle said.

Collier said he plans to file an appeal of Phillips' conviction, based in part on expert testimony he said should have been disallowed at trial. Family members had been frustrated by the slow pace of the case. It took investigators almost a year to charge Phillips. Friday’s sentencing occurred just two days shy of the fifth anniversary of those charges being formally filed in court....

Dan Jenkins said the life sentence will make it easier to explain the tragedy to his daughter, Ashley, now almost 6, when she asks about her “Momma Jen.” “Now I can tell her the man is in jail for the rest of his life. I can look at her and say that man will never hurt anybody again.”

I am pretty sure that Florida has no parole mechanism for these kinds of cases, so this life+ sentence is truly an LWOP+ sentence.  I am not so sure, but now wondering about, whether this defendant could have and would have received a much lower sentence had he been willing to plead guilty.  Relatedly, it is unclear what particular facts and factors were critical at trial for his convictions and how much "expert testimony" may have made a difference.  Whatever the plea/trial backstory, I now have another example for my students of how relatively common risky behavior can be punished severely when it results in particularly tragic harms.

October 15, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Friday, October 13, 2017

"Financing the War on Drugs: The Impact of Law Enforcement Grants on Racial Disparities in Drug Arrests"

The title of this post is the title of this notable paper authored by Robynn Cox and Jamein Cunningham that I just noticed on SSRN.  Here is the abstract:

We estimate the effectiveness of the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, a grant program authorized under the 1988 Anti-Drug Abuse Act to combat illicit drug abuse and to improve the criminal justice system, on racial bias in policing. Funds for the Byrne Grant program could be used for a variety of purposes to combat drug crimes, as well as violent and other drug related crimes.

The event-study analysis suggests that implementation of this grant resulted in an increase in police hiring and an increase in arrests for drug trafficking. Post-treatment effect implies a 107 percent increase in white arrests for drug sales compared to a 44 percent increase for blacks 6 years after the first grant is received.  However, due to historical racial differences in drug arrests, the substantial increase in white drug arrest still results in large racial disparities in drug arrests.  This is supported by weighted least squares regression estimates that show, for every $100 increase in Byrne Grant funding, arrests for drug trafficking increased by roughly 22 per 100,000 white residents and by 101 arrests per 100,000 black residents.

The results provide strong evidence that federal involvement in narcotic control and trafficking lead to an increase in drug arrests; disproportionally affecting blacks.

October 13, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Just a handful of headlines from the various front-lines of the opioid epidemic

I could readily fill this blog multiple times a day with tales of the opioid epidemic given the size and reach of the problem and the attention it is getting from many quarters.  In my view, the epidemic is, first and foremost, a public health issue.  But, as I say often on in this space and elsewhere, every major issues of public policy is a criminal justice/sentencing issue in some way.  These recent stories/headlined highlight these realities in various ways: 

October 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

"The Federal Rules of Inmate Appeals"

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

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically.  This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. 

In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals.  And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals.

In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities -- and underscores the salience of local court practices and institutional partnerships.

October 13, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, October 12, 2017

Big new report provides state-by-state guide to expungement and rights restoration

Report-coverAs detailed in this new post over at the Collateral Consequences Resource Center, the folks at CCRC have just published this big new report on state expungement and rights restoration practices under the title "Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights." This CCRC post provides this account of the new report's coverage and goals:

This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative nondiscrimination statutes. Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief. Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country. We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy. It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

The title of the report provides a framework for analyzing different types of relief provisions. For most of our history, executive pardon constituted the principal way that persons convicted of a felony could “pay their debt to society” and regain their rights as citizens. This traditional symbol of official forgiveness was considered ineffective by mid-20th century reformers, who sought to shift responsibility for restoration to the courts. The reforms they proposed took two quite different approaches: One authorized judges to limit public access to an individual’s record through expungement or sealing, and the other assigned judges something akin to the executive’s pardoning role, through deferred dispositions and certificates of relief. These two approaches to restoration have existed side by side for more than half a century and have never been fully reconciled.

Today, with a new focus on reentry and rehabilitation, policy-makers are again debating whether it is more effective to forgive a person’s past crimes (through pardon or judicial dispensation) or to forget them (through record-sealing or expungement). Despite technological advances and now-pervasive background-checking practices, many states have continued to endorse the forgetting approach, at least for less serious offenses and records not resulting in conviction. At the same time, national law reform organizations have proposed more transparent judicial forgiving or dispensing mechanisms. While the analytical model of “forgiving v. forgetting” is necessarily imperfect given the wide variety of relief provisions operating in the states, it seems to capture the basic distinction between an approach that would mitigate or avoid the adverse consequences of past crimes, and an approach that would limit access to information about those crimes.

The report organizes relief provisions into six categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing laws, and restoration of voting rights. The judgments made about the availability of each form of relief, reflected in color-coded maps, are in many cases necessarily subjective, and we have done our best to explain our approach in each case.

More detailed information about different forms of relief is available from the state-by-state summaries that are the heart of the report. Citations to relevant laws and comparisons of the laws of each state are included in the 50-state charts in Appendices A & B. Up-to-date summaries and charts are available from the Restoration of Rights Project, which additionally includes in-depth discussions of the law and policy in its state-by-state “profiles.” This information is updated by the authors on a real-time basis, and we expect to republish this report from time to time when warranted by changes in the law.

October 12, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, October 11, 2017

"Is Having Too Many Aggravating Factors the Same as Having None at All?: A Comment on the Hidalgo Cert. Petition"

The title of this post is the title of this short commentary authored by Chad Flanders that a helpful reader alerted me to.  Here is a paragraph from the introduction:

[This] paper proceeds in three short parts.  The first part sets out the argument in the Hidalgo petition and explains its claim that having too many aggravating factors is as ineffective as having no aggravating factors.  The second part provides a straightforward critique of the Hidalgo argument along the lines detailed above — that the fact that aggravating factors may cover a large number of actual murders does not say much (indeed, practically nothing in the abstract) about whether those aggravating factors “narrow” the class of the death eligible.  In the third part, I suggest that the “multiple aggravators” argument is in essence a version of the original worry about broad and amorphous aggravating factors.  But this critique means analyzing how aggravators work (individually and together) as a conceptual matter, rather than analyzing whether all murders committed in the state happen to fit under one of the aggravating factors.

October 11, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"Justice for Veterans: Does Theory Matter?"

The title of this post is the title of this notable new paper authored by Kristine Huskey and now available via SSRN. Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts. Currently, there are over 350 VTCs and veteran-oriented tracks in the United States. Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.  These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service.  A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

October 11, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Judge Kozinski, in dissent, laments the "cruel and expensive hoax" of the death penalty in California

A divided Ninth Circuit panel issued an extended opinion yesterday in Kirkpatrick v. Chappell, No. 14-99001 (9th Cir. Oct. 10, 2017) (available here), that keeps alive a habeas claim that of a California murderer trying to stay alive decades after being sentenced to death for a double murder committed in 1983. The bulk of the ruling, with a majority ruling by Judge Reinhardt and a dissent by Judge Kozinski, concerns the intricacies of appellate and habeas procedure. But the last four pages of Judge Kozinski's dissent are what make the opinion blog-worthy, and here is a taste from its start and end (without the copious cites):

But none of this matters because California doesn’t have a death penalty.  Sure, there’s a death row in California — the biggest in the Western Hemisphere. But there have been only thirteen executions since 1976, the most recent over ten years ago.  Death row inmates in California are far more likely to die from natural causes or suicide than execution....

Meanwhile, the people of California labor under the delusion that they live in a death penalty state.  They may want capital punishment to save innocent lives by deterring murders.  But executions must actually be carried out if they’re to have any deterrent effect.  Maybe death penalty supporters believe in just retribution; that goal, too, is frustrated if there’s no active execution chamber.  Or perhaps the point is closure for victims’ families, but these are surely false hopes.  Kirkpatrick murdered Rose Falconio’s sixteen-year-old son more than thirty years ago, and her finality is nowhere near.  If the death penalty is to serve whatever purpose its proponents envision, it must actually be carried out. A phantom death penalty is a cruel and expensive hoax.

Which is why it doesn’t matter what we hold today.  One way or the other, Kirkpatrick will go on to live a long life “driv[ing] everybody else crazy,” while copious tax dollars are spent litigating his claims.  And my colleagues and I will continue to waste countless hours disputing obscure points of law that have no relevance to the heinous crimes for which Kirkpatrick and his 746 housemates continue to evade their lawful punishment.  It’s as if we’re all performers in a Gilbert and Sullivan operetta.  We make exaggerated gestures and generate much fanfare. But in the end it amounts to nothing.

October 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25)

Monday, October 09, 2017

Reviewing the backstory of the Supreme Court's recent capital cert grant

As noted in this post a couple of weeks ago, the Supreme Court recently added a capital case to its docket. Adam Liptak's latest New York Times "Sidebar" column is focused on that new case.  This piece, headlined "Facing the Death Penalty With a Disloyal Lawyer," includes these passages:

Two weeks before Robert McCoy was to be tried for a triple murder, his lawyer paid him a visit.  It was the summer of 2011, and the two men met in a holding cell in a Louisiana courthouse.  Mr. McCoy, who was facing the death penalty, told his lawyer he was innocent. Mr. McCoy was adamant. Others had committed the crimes, he said, and he wanted to clear his name.

The lawyer, Larry English, said he had a different strategy. “I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English recalled in a sworn statement.  “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so.”...

Conceding guilt in a capital case is sometimes the right play.  Last month, the Supreme Court agreed to decide whether it is permissible even if the man whose life is at stake objects.

Mr. McCoy was accused of killing Christine Colston Young, Willie Young and Gregory Colston, who were the mother, stepfather and son of Mr. McCoy’s estranged wife. There was substantial evidence that he had done so. There was also reason to think that Mr. McCoy’s belief in his innocence was both earnest and delusional.

There was no ambiguity in Mr. McCoy’s position, Mr. English recalled. “I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”

After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself. Judge Jeff Cox, of the Bossier Parish District Court, turned him down. “Mr. English is your attorney, and he will be representing you,” the judge said....

During his opening statement at the trial, Mr. English did what he had promised to do. “I’m telling you,” he told the jury, “Mr. McCoy committed these crimes.” Mr. McCoy objected. “Judge Cox,” he said, “Mr. English is simply selling me out.”

“I did not murder my family, your honor,” Mr. McCoy said. “I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

Whatever its wisdom, Mr. English’s trial strategy failed. Mr. McCoy was convicted and sentenced to death. He appealed to the Louisiana Supreme Court, saying his lawyer had betrayed him. The court ruled against him. “Given the circumstances of this crime and the overwhelming evidence incriminating the defendant,” the court said, “admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.”

The decision relied on a unanimous 2004 ruling from the United States Supreme Court in Florida v. Nixon, which said lawyers need not obtain their clients’ express consent before conceding guilt in a capital case. But the ruling did not address whether it was permissible for a lawyer to disregard a client’s explicit instruction to the contrary.

That is the question in the new case, McCoy v. Louisiana, No. 16-8255.  The right answer, Louisiana prosecutors told the justices, is that lawyers may ignore their clients’ wishes. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” they wrote in a brief urging the court not to hear the case.

In a brief supporting Mr. McCoy, the Ethics Bureau at Yale, a law school clinic, said Mr. English had essentially switched sides. “Far from testing the prosecution’s case,” the brief said, “Mr. English seemed downright eager to advance it.”

Mr. McCoy’s situation is not particularly unusual, according to a second supporting brief, this one filed by the Louisiana Association of Criminal Defense Lawyers and the Promise of Justice Initiative, a nonprofit group. “In Louisiana,” the brief said, “a capital defendant has no right to a lawyer who will insist on his innocence.” Since 2000, the brief said, the Louisiana Supreme Court allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.

October 9, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability"

The title of this post is the title of this notable new paper authored by Christopher Slobogin. Even more than the title, the paper's abstract suggests it is a must-read for sentencing fans:

Most scholars who have written about the role of neuroscience in determining criminal liability and punishment take a stance somewhere between those who assert that neuroscience has virtually nothing to say about such determinations and those that claim it will upend the assumption that most choices to commit crime are blameworthy.  At the same time, those who take this intermediate position have seldom clarified how they think neuroscience can help. This article tries to answer that question more precisely than most works in this vein.  It identifies five types of neuroscience evidence that might be presented by the defense and discusses when that evidence is material under accepted legal doctrine.  It concludes that, even on the assumption that the data presented are accurate, much commonly proffered neuroscientific evidence is immaterial or only weakly material, not only at trial but also at sentencing. At the same time, it recognizes that certain types of neuroscience evidence can be very useful in criminal adjudication, especially at sentencing.

October 9, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Friday, October 06, 2017

Nearly 35 years after his double murder, Florida executes Michael Lambrix despite non-unanimous jury death recommendations

As reported in this local article, "Florida executed an inmate Thursday who was convicted of killing two people after a night of drinking decades ago."  Here is part of the extended backstory:

Michael Lambrix, 57, died by lethal injection at 10:10 p.m. at Florida State Prison in Bradford County. For his final words, Lambrix said, “I wish to say the Lord's Prayer.” He recited the words, ending on the line “deliver us from evil,” his voice breaking slightly at times.

When he finished and the drug cocktail began flowing through his veins, Lambrix's chest heaved and his lips fluttered. This continued for about five minutes, until his lips and eyelids turned silver-blue and he lay motionless. A doctor checked his chest with a stethoscope and shined a light in both of his eyes before pronouncing him dead.

Lambrix was the second inmate put to death by the state since it restarted executions in August. Before then, the state had stopped all executions for months after a Supreme Court ruling that found Florida's method of sentencing people to death was unconstitutional. In response, the state Legislature passed a new law requiring death sentences to have a unanimous jury vote.

Lambrix's attorney, William Hennis, argued in an appeal to the nation's high court that because his client's jury recommendations for death were not unanimous — the juries in his two trials voted 8-4 and 10-2 for death — they should be thrown out.  The Florida Supreme Court has ruled that Lambrix's case is too old to qualify for relief from the new sentencing system. The U.S. Supreme Court on Thursday night denied Lambrix's last-ditch appeal.

Lambrix was convicted of killing Clarence Moore and Aleisha Bryant in 1983 after a long night of partying in a small central Florida town, Labelle, about 30 miles (50 kilometers) northeast of Fort Meyers. Lambrix said he was innocent.

He and his roommate, Frances Smith, had met the victims at a bar, and returned to their trailer to eat spaghetti and continue the party, prosecutors said.  At some point after returning to the trailer, Lambrix asked Moore to go outside. He returned about 20 minutes later and asked Bryant to come out as well, according to Smith's testimony. Smith testified at trial that Lambrix returned to the trailer alone after the killings, his clothes covered in blood.  The two finished the spaghetti, buried the two bodies and then washed up, according to Smith's testimony cited in court documents.

Prosecutors said Lambrix choked Bryant, and used a tire iron to kill Moore. Investigators found the bodies, the tire iron and the bloody shirt.

Lambrix has claimed in previous appeals that it was Moore who killed Bryant, and that he killed Moore only in self-defense. “It won't be an execution,” he told reporters in an interview at the prison Tuesday, according to the Tampa Bay Times. “It's going to be an act of cold-blooded murder.”

Lambrix's first trial ended in a hung jury. The jury in the second trial found him guilty of both murders, and a majority of jurors recommended death.

He was originally scheduled to be executed in 2016, but that was postponed after the U.S. Supreme Court's ruling in a case called Hurst v. Florida, which found Florida's system for sentencing people to death was unconstitutional because it gave too much power to judges, instead of juries. Florida's Supreme Court has ruled that the new death sentencing system only applies to cases back to 2002.

October 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

Thursday, October 05, 2017

"Gorsuch Joins Court’s Liberals Over Protections for Criminal Defendants"

The title of this post is the headline of this notable new Wall Street Journal article which is primarily focused on the Supreme Court oral argument yesterday in Class v. US.  Because Class is a quirky case dealing with appeal rights and because no formal opinions have been issued this Term for Justice Gorsuch to join (and because Justice Gorsuch also voted on Wednesday to vacate an injunction protecting from execution a death row defendant in Alabama), I think this WSJ headline is a bit overblown and perhaps even misleading.  But I still consider the headline revealing, as is its account of SCOTUS argument which prompted it.  Here are excerpts:

Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.

Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.

Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.

According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.” Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.

A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.

A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.

Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked. “No, your honor,” Mr. Feigin said.

Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.

Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment — but not that those actions necessarily are illegal. “You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.

Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

A few prior related posts:

October 5, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Tuesday, October 03, 2017

Interesting comments from the new Justice during reargument of vagueness issues in Sessions v. Dimaya

The first week of oral argument in front of the Supreme Court in the 2017 Term includes reargument in two immigration cases, Sessions v. Dimaya and Jennings v. Rodriguez, that raise constitutional question that could have a range of implications for a range of criminal justice issue.  Dimaya is a follow-up on the (new?) doctrines the Supreme Court started developing in Johnson v. US finding a portion of the Armed Career Criminal Act void for vagueness, and Rodriguez involves broad issues of detention length and due process.

Dimaya was argued yesterday, and I have not yet had a chance to read this full argument transcript closely.  But a quick scan of the transcript with a focus on what the new Justice, Neil Gorsuch, had to say revealed that he is already showing a commitment to textualism and seems quite engaged with interesting issues at the intersection of civil and criminal sanctions.  For example, consider this passage at the start of a question a series of questions for the government's lawyer:

First, getting back to the standard of review and the distinction between criminal and civil, this Court seems to have drawn that line based on the severity of the consequences that follow to the individual, but that seems to me a tough line here to draw because I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn't trade places in the world for someone who is deported -- deported from this country pursuant to a civil order or perhaps the subject of a civil forfeiture requirement and loses his home.

So how sound is that line that we've drawn in the past, especially when the civil/criminal divide itself is now a seven-part balancing test, not exclusive, so there may be more than seven factors as I understand it.  And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property.  It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right to self-incrimination, for example. So help me out with that.

Time will tell how this line of inquiry might find expression in opinions of Justice Gorsuch or other justices in the months ahead. Notably, elsewhere in the transcript, it appears the advocates and other Justices follow-up on points made by Justice Gorsuch in ways that provide further proof that the addition of a single new Justice does serve in some ways to change the entire Court.

UPDATE:  Not very long after this post went up, Kevin Johnson posted at SCOTUSblog this analysis of the Dimaya oral argument under the title "Faithful to Scalia, Gorsuch may be deciding vote for immigrant." Here is his final paragraph:

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court.  Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia’s opinion in Johnson to Dimaya’s case -- maybe even more faithfully than Scalia himself would have done.  And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute’s residual clause.

October 3, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (5)

Five notable GOP Senators introduce Mens Rea Reform Act of 2017

Download (3)As reported in this press release, yesterday "Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law."  Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard.  This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind....

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Sen. Lee said. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime.  The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law."

“I’m proud to join Sen. Hatch in addressing one of the biggest flaws in our modern criminal justice system,”Sen. Cruz said. “Currently, the federal government can send men and women to prison without demonstrating criminal intent.  As Congress works to address criminal justice reform, the Mens Rea Reform Act needs to be enacted to protect the rights of all Americans.”

The press release includes "Statements of Support" from John Malcolm of the Heritage Foundation, Norman Reimer of the National Association of Criminal Defense Lawyers, and David Patton of the Federal Defenders of New York.   And in conjunction with this bill introduction, Senator Hatch Senator Hatch yesterday delivered this speech on the Senate floor about the need for mens rea reform.  Here are excerpts from that speech:

Like many of my colleagues, I believe Congress has criminalized far too much conduct and has mandated overly harsh penalties for too many crimes. A number of my colleagues have sought to address these problems by cutting prison sentences, altering statutory minimums, or releasing prisoners earlier for good behavior. But as we seek to reform the criminal justice system, we must be careful not to overlook one of the major roots of the problem: the lack of adequate criminal intent requirements in federal criminal statutes....

Unfortunately, many of our current criminal laws and regulations contain inadequate mens rea requirements — and some contain no mens rea requirement at all. This leaves individuals vulnerable to prosecution for conduct they believed to be lawful.

In recent years, as Congress and federal agencies have criminalized more behavior, they have often been vague about mens rea requirements, or even silent about mens rea altogether. In a 2014 Tennessee Law Review article, Michael Cottone investigated how many federal criminal statutes there are in the US code. Mr. Cottone explained that “tellingly, no exact count of the number of federal statutes that impose criminal sanctions has ever been given.” Most scholars agree there are approximately 5,000 federal statutes that impose criminal sanctions. But those criminal statutes do not include the nearly 300,000 federal regulations that also carry criminal penalties.

With so many criminal laws on the books, it’s far too easy for Americans to break federal laws unwittingly, with no understanding whatsoever that their behavior is illegal. For example, did you know it’s a federal crime to write a check for an amount less than $1 dollar? Or that it’s a federal crime to allow a pet to make a noise that frightens wildlife on federal land? Even more incredibly, did you know it’s a federal crime to keep a pet on a leash that exceeds six feet in length on federal land?

Mr. President, these are only a few examples of unlawful activities that reasonable people could not reasonably be expected to know. What’s worse, many of these unlawful activities are punishable by time in prison. This is not only ridiculous; it’s immoral. The lack of adequate mens rea requirements in our federal criminal code subjects innocent people to unjustified punishment....

Our bill sets a default intent requirement of willfulness for all federal criminal offenses that lack an intent requirement. Additionally, the bill defines willfulness to mean that the person acted with knowledge that his or her conduct was unlawful. Naturally, our bill does not apply to any offenses that Congress clearly intended to be strict liability offenses. Our proposal has garnered widespread support from a variety of organizations, including the National Association of Criminal Defense Lawyers, Koch Industries, the Federal Defenders, the US Chamber of Commerce, the Federal Defenders, and the Heritage Foundation, just to name a few. Importantly, our bill does not remove any crimes from the books, nor does it override any existing mens rea standards written in statute. Moreover, it does not limit Congress’s authority to create new criminal offenses—including strict liability offenses.

Mr. President, mens rea really is a simple issue. Individuals should not be threatened with prison time for accidently committing a crime or for engaging in an activity they did not know was wrong. If Congress wants to criminalize an activity, and does not want to include any sort of criminal intent requirement, Congress should have to specify in statute that it is creating a strict liability offense.

I believe this simple legislative solution will go a long way in reducing harsh sentences for morally innocent offenders. It will also push back against the overcriminalization of innocent behavior. As I’ve said many times, any consideration of criminal justice reform or sentencing reform is incomplete without reforms to mens rea requirements.

I cannot yet find the full text of the Mens Rea Reform Act of 2017 on-line, but I suspect it is very similar if not identical to the previously introduced Mens Rea Reform Act of 2015 available here.  It does not seem that Senator Hatch was a cosponsor of the 2015 version of this bill, so I think it is a very good sign that Senator Hatch is now apparently leading the charge for this reform (and doing so by stressing that he believes Congress has "mandated overly harsh penalties for too many crimes").

As long-time readers recall (and as detailed in some prior posts below), there is reason to believe that misguided opposition to this kind of mens rea reform by the Obama Administration and some Democrats contributed to the failure of bipartisan sentencing reforms to make it through Congress.  I am hopeful (but not optimistic) that the current Administration is more supportive of this kind of mens rea reform; I am also hopeful that this bill might be linked to broader sentencing reform efforts and that both might get moving forward in the legislative process in the coming weeks and months.

Some recent and older related posts:

October 3, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, October 02, 2017

"Plea Bargains Are a Travesty. There's Another Way."

I just noticed this recent Megan McArdle commentary at Bloomberg View which is summarized by its subheadline: "Better to apply fewer laws more consistently than to continue the U.S.’s current 'randomized draconianism'." Here are excerpts:

The justice system is no longer set up to provide an innocent man his day in court. It is a machine for producing plea bargains in industrial quantities.

It can operate no other way, because the volume of cases is far larger than the court system can actually handle.  So instead of trials that take a long time and cost a lot of money but ideally separate the guilty from the innocent, we have become dependent on an assembly line where the accused go in at one end and come out the other a (relatively) short time later -- as convicted criminals, regardless of their guilt or innocence, but with shorter sentences than they would have faced if convicted at trial and with smaller lawyers’ bills than they would have faced if they had gone to trial....

The most obvious way to begin repairing this broken system is to spend more money building courtrooms and hiring judges, so that defendants actually do have a chance at their constitutionally guaranteed right to a speedy trial.  We should also take a long, hard look at the number of things that are crimes, and the sentencing laws that require many crimes be requited with very harsh penalties.

Most our mass incarceration problem is a sentencing problem, driven by both mandatory minimums and prosecutors who are rewarded for being “tough on crime.” These factors aggravate the flaws of the plea-bargaining system.  Prosecutors can threaten to prosecute on draconian charges, which carry draconian sentences -- and all but force a defendant, even an innocent one, to take a plea bargain, with a lesser charge and a lesser sentence.  Defendants (guilty and innocent alike) usually conclude that the risk of going to trial is simply too great.  And the plea bargains, in turn, keep the machine from choking on the volume of cases being run through it. Instead it grinds out a very poor substitute for justice.

Reducing the number of laws and reducing the ability (or requirement) for prosecutors to secure serious jail time for so many offenses would reduce mass incarceration and start to unclog our court system.  We should do these things.  Unfortunately, they won’t be enough.

While the popular picture among de-incarceration advocates is of prisons and courtrooms is of a system choked with nonviolent drug offenders, in fact, the system handles an immense amount of real, harmful crime.  We’re not going to decriminalize theft or assault or robbery, nor should we.  If we really want a justice system that is not too overwhelmed to provide justice, we are going to have to focus on reducing crime....

Mark Kleiman of NYU, who has taught me most of what I know about crime policy, wrote a brilliant book called “When Brute Force Fails,” on the ways we can retool the justice system to actually reduce crime, rather than simply punishing it more harshly.  Kleiman is liberal, but conservatives should have no fear: This is not a book about how we need loads more social spending and liberal policies to address the “root causes.”  This is a book about how we can police and punish more effectively.  The sort of proposals that should be welcomed by left and right alike.

Kleiman’s ideas and insights are too many to sum up in a column, so I’ll focus on a core observation: Bad policing, and bad prison policy, can create more crime. Our current justice system provides what Kleiman calls “randomized draconianism”: Your odds of getting caught and punished are not very high, but if you are caught, you’ll get treated very harshly.  The likelihood of punishment is so low that there is no deterrent effect to prevent crime, and the severity of punishment is so harsh that it may simply make those who are caught more likely to commit further crimes....

What’s the alternative?  Raise the odds of punishment, and lower the severity.  That means more police on the streets, focused on steadily reducing crime hot-spots and making it unattractive to take up a life of crime in the first place. It means probation and parole systems that provide much more intensive monitoring, but use lighter sanctions like a night or two in jail, rather than revoking someone’s parole and sending them back to prison for five years.  It means exploring new technologies that allow us to put people under “house arrest” of varying intensity.  In the short term, this will mean spending more money and effort on the system.  But there’s good news: Prison is so expensive that even many expensive programs can save money on net if they keep people out of long prison terms.

October 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

First big SCOTUS order list has lots of big "cert denied" decisions in big sentencing cases

In prior posts here and here and here, I flagged a couple of commentaries that had flagged Supreme Court cert petitions to watch with the start of a new SCOTUS Term.  A lot of folks have been paying particular attention to two sex offender cases, Karsjens v. Piper (concerning the constitutionality of Minnesota Sex Offender Program), and Snyder v. Does (concerning retroactive application of Michigan's sex offender registry). 

This morning, the Supreme Court released this 75-page order list in which it denied cert on both of these closely-watched cases.  The order list also reveals SCOTUS also denied cert in a number of other cases of likely interest to sentencing fans, such as various cases concerning the application of the Eighth Amendment limit on LWOP juve sentences set out in Graham and Miller.  As detailed in this post last week, the Supreme Court already added a few criminal cases to its docket as it got back to work for the Term.  But none of the new cases it has taken up are likely blockbusters or possibly as consequential as the cases it now has officially decided not to review. 

For a variety of reasons, I am not too surprised by these denials of cert.  Despite my own wishful thinking that the addition of Justice Gorsuch might juice the parts of the docket I find most exciting, I am largely expecting a relatively quiet Term on the sentencing front.  That all said, hope springs eternal, and hope for some exciting grants might be renewed when the fine folks at SCOTUSblog figure out which cases are missing from this new order list and become hot prospects as "relisted" petitions.

October 2, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, October 01, 2017

"South Dakota Swaps Lawyers for Tablets in Prisons"

The title of this post is the headline of this Courthouse News Service article that struck me as linguistically and conceptually amusing on a number of levels. Substantively, however, I am not sure anyone should be amused by what the body of the story reports:

Sometime in the next few days, inmates in South Dakota prisons will start counting on tablet computers – not a state-funded, in-prison attorney or paralegal – to help them with their cases.  The South Dakota Department of Corrections did not renew a contract for attorney Delmar “Sonny” Walter and his paralegals, who since the early 2000s have assisted the state’s prison population with research and filing of legal documents ranging from habeas petitions to child support documents.

Corrections secretary Denny Kaemingk told the Sioux Falls Argus Leader the move will save taxpayers money. But one prisoner’s rights attorney has concerns.  “What’s someone who can’t read or write or can’t do so fully effectively or without mental illness supposed to do with a tablet?” said David M. Shapiro, clinical assistant professor of law at Northwestern University’s Roderick MacArthur Justice Center. “It’s a pennywise, pound-foolish approach.”

This past May, the state announced every one South Dakota’s approximately 3,000 inmates would receive a free tablet computer.  This allows the inmates longer phone calls, subscriptions to online movies and music, and text messaging with loved ones. Inmates also now have access to law-references websites such as Westlaw and LexisNexis. It was a change supported by Walter, the on-site attorney, but he’s doubtful the technical upgrade is a substitute for legal insight from professionals.

“The things we did made the institution run smoother,” Walter said, noting his staff did everything to help inmates -- most legal novices unfamiliar with complex documents -- with everything from knowledgeably preparing appeals to making copies to helping inmates with medication requests.  “We helped the inmates get into court in a number of ways, and now they won’t have that stuff.”

In 1999, a state judge ruled the prisons must provide “legal assistance” for inmates.  The program -- which cost the state $276,000 in 2017 -- has never been luxurious.  “In Springfield (the Mike Durfee State Prison) we were basically in a closet,” Walter said. “These inmates had maybe two to four hours a week. They often had to choose between a doctor’s appointment or researching their case.”...

He predicts the state will soon see another access lawsuit. “A book isn’t going to make you a lawyer. These people need legal assistance.”...

In the past year, falling revenue has forced South Dakota to cut back on projects and revise spending goals. In part, providing inmates with tablets was an effort to lower re-offense rates and reduce taxpayers’ burden.  Shapiro, the Northwestern law professor, argues this nickel-and-dime cost-cutting distracts from a bigger problem.  “At the end of the day, America has more people locked up than any other country on earth,” he said in a phone interview. “A reduction in incarceration would lead to genuine savings.”

October 1, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, September 28, 2017

Yale Law School clinic report looks at "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration"

A helpful reader alerted me to this new report released by The Criminal Justice Clinic at Yale Law School.  This press release from the school's website provides some background and a kind of summary of the report, which carries the title "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration":

A new report highlights opportunities for the State of Connecticut to reduce the high rate of incarceration attributable to its parole revocation process. The report was written by the Samuel Jacobs Criminal Justice Clinic (“CJC”) at Yale Law School.

The report details the findings of a research project that began in the fall of 2015 after Governor Dannel Malloy announced the Second Chance Society initiative.  To support that initiative, CJC agreed to undertake a study of parole revocation in Connecticut to explore ways to reduce incarceration and to facilitate the reintegration of parolees into society....

As part of the CJC study, students and faculty personally observed 49 parole revocation hearings in Connecticut in November 2015.  Shortly after these observations, they reported the following findings to state officials:

  • The Board of Pardons and Paroles (BOPP) revoked parole in 100% of the observed cases.
  • BOPP imposed a prison sanction in 100% of observed cases.
  • Nearly all parolees in the observed cases waived their due process rights in the parole revocation process.
  • No parolee appeared with appointed counsel, even though several parolees seemed clearly to qualify for state-provided counsel under the constitutional standard.
  • The typical procedures at parole revocation hearings made it difficult for parolees to contest disputed facts or to present mitigating evidence. Without counsel, incarcerated parolees did not have a meaningful opportunity to develop evidence in support of their claims.

In 2016, CJC administered a follow-up survey to parolees whose hearings it had observed.  The survey revealed that most parolees did not understand the rights that they had waived during the parole revocation process.  The survey also revealed that 79% of the parolees interviewed had lost jobs as a consequence of parole revocation....

Over the last two years, BOPP has begun to implement reforms to its parole revocation practices in response to the CJC study. In 2017, BOPP asked that CJC present additional recommendations in writing, which led to the release of this report.

September 28, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

SCOTUS grants cert on a bunch of criminal cases, including at least one possibly exciting sentencing case

Over the weekend in this post, I flagged a bunch of interesting criminal cases flagged in this lengthy In Justice Today accounting of cert petitions to watch as the Supreme Court got back in action with its end-of-the-summer "long conference."  Today, via this short order list, the Supreme Court reported out some of the results of its work at the long conference.  Specifically, the court granted certiorari in 11 cases (three of which about military courts are consolidated).  Interestingly, though I did not see any of the cases I have been watching on the "certiorari granted" order list, it seems at least five of the case that do appear on the latest order list involve criminal issues:

16-1027 COLLINS, RYAN A. V. VIRGINIA

16-1371 BYRD, TERRENCE V. UNITED STATES

16-1466 HAYS, KS V. VOGT, MATTHEW JACK D. (N.B.: "Justice Gorsuch took no part in the consideration or decision of this petition.")

16-8255 McCOY, ROBERT L. V. LOUISIANA (N.B.: the "a writ of certiorari [is] limited to Question 1 presented by the petition")

16-9493 ROSALES-MIRELES, FLORENCIO V. UNITED STATES

Based on a too-quick bit of Google searching, it appears that the first two cases above deal with Fourth Amendment car searches, the Vogt case deals with Fifth Amendment procedure, McCoy is a state capital case seemingly dealing with right to counsel issues, and Rosales-Mireles is a federal sentencing appeal!  I am hopeful that SCOTUSblog will soon have their usual terrific coverage of all of today's grants with links to the filings.  I suspect that hard-core sentencing fans will be most interested in the final two cases listed above, but I will need to see the filings before I will know just how excited to get about these new cases on the SCOTUS docket.

Meanwhile, for all the cases in the cert pool being watched by others, we will need to wait until at least Monday morning to know more about their fate.  For those rooting for cert grants, not being on today's order list is not a good sign.  But a lot of cases get relisted after the long conference, and thus there is still a decent chance at least a handful more criminal cases of note will be added to the docket in the coming weeks.

UPDATE Not minutes after I finished this post, I see Amy Howe has this long post reviewing all of today's cert grants, and here is part of her accounting of the criminal cases:

The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices will consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.... 

In Collins v. Virginia, the justices have agreed to clarify the scope of the “automobile exception” to the warrant requirement – specifically, whether it applies to a car parked on private property, close to a home....

Byrd v. United States: Expectations of privacy in rental car for someone who is not an authorized driver;

Rosales-Mireles v. United States: Standard for the court of appeals to correct a plain error;

McCoy v. Louisiana: Whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.

Today’s grants are likely to be argued in either January or February.

September 28, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

US Sentencing Commission releases big new report on "Federal Alternative-to-Incarceration Court Programs"

ThVRFS1G7AThe US Sentencing Commission has this morning released this 100-page report titled "Federal Alternative-to-Incarceration Court Programs."  Here is part of the report's introduction:

During the three decades that it has been in existence, the United States Sentencing Commission (Commission) repeatedly has considered the important issue of when an alternative to incarceration is an appropriate sentence for certain federal defendants. The original 1987 Guidelines Manual provided for alternative sentencing options such as probation for certain low-level federal offenders, and the Commission thereafter amended the guidelines on several occasions to increase the availability of alternative sentences as sentencing options. Despite these amendments, the rate of alternative sentences imposed in cases governed by the sentencing guidelines has fallen steadily during the past three decades, including after United States v. Booker, and Gall v. United States, which increased federal judges’ discretion to impose alternative sentences. In recent years, the Commission has prioritized the study of alternatives to incarceration as a sentencing option.

Many federal district courts around the country, with the support of the Department of Justice (DOJ), have begun creating specialized court programs to increase the use of alternatives to incarceration for certain types of offenders, most commonly for those with substance use disorders. These programs have developed independently of policy decisions of both the Commission and the Judicial Conference of the United States.  Commentators, including judges who have presided over these court programs, have urged the Commission to amend the Guidelines Manual to encourage such programs and provide the option of a downward departure to a non-incarceration sentence for defendants who successfully participate in them and who otherwise would face imprisonment based on their guideline sentencing ranges.

As part of its recent priority concerning alternatives to incarceration, the Commission has studied these emerging court programs. The Commission’s study has been qualitative rather than quantitative at this juncture because of a lack of available empirical data about the programs.  In late 2016 and early 2017, Commission staff visited five districts with established programs, interviewed program judges and staff, and observed proceedings.  On April 18, 2017, the Commission conducted a public hearing about such specialized federal court programs, at which the Commission received testimony from experts on state “drug courts” and other “problem-solving courts” as well as from federal district judges who have presided over three of the more established alternative-to-incarceration court programs.

This publication summarizes the nature of these emerging federal alternative-to-incarceration court programs and will highlight several legal and social science issues relating to them. Part II defines key terms and concepts, discusses the history of alternative-to-incarceration court programs, which originated in the state courts nearly three decades ago, and then specifically describes the types of specialized federal court programs that have been created in recent years.  Part III discusses legal issues related to the federal court programs, including how they fit within the legal framework created by the Sentencing Reform Act of 1984 (SRA) and modified by the Supreme Court in 2005 in Booker.  Part IV identifies social science issues related to the programs, including issues related to the efficacy and cost-effectiveness of the federal court programs.

Part V concludes by identifying several questions about the federal court programs that policymakers and courts should consider in deciding whether, and if so how, such programs should operate in the federal criminal justice system in the future.

September 28, 2017 in Booker in district courts, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"When ‘Not Guilty’ Is a Life Sentence"

The title of this post is the headline of this extended New York Times Magazine article with this summary subheadline: "What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight." Here is an excerpt:

James’s insanity acquittal placed him in an obscure, multibillion-dollar segment of domestic detention.  According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals.  Even a contributor to the study concedes that no one knows the exact number.  While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.

In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”

Michael Bien, a lawyer who helped bring a successful lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses, concurs. “Under constitutional law, they’re supposed to be incarcerated only if they’re getting treatment, and only if the treatment is likely to restore sanity,” he says. “You can’t just punish someone for having mental illness. But that’s happening.”...

[D]espite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist.  A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial.  At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals.  If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury....

And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal.  N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public.  (Michael Jones, who was a paranoid schizophrenic, had been hospitalized since 1975, after pleading N.G.R.I. to petty larceny for trying to steal a jacket.)  In almost all states, N.G.R.I. means automatic commitment to a psychiatric facility.  In most states, like New York, there is no limit to the duration of that commitment.  In the states that do have limits, like California, the limits are based on the maximum prison sentence for the offense, a model that belies the idea of hospitalization as treatment rather than punishment.  As Suzanna Gee, an attorney with Disability Rights California (a protection and advocacy agency with counterparts in every state), points out, the law allows two-year extensions as patients approach a “top date,” the limit set on their confinement.  And so, she says, “it can be extended in perpetuity.”

September 28, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, September 27, 2017

"Will SCOTUS Let Fear of Sex Offenders Trump Justice?"

The title of this post is the headline of this new Reason commentary by Jacob Sullum spotlighting two cases I have tracked on this blog as they have made their way up to the Justices. Here is how the piece starts and ends:

According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives.  Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions.

Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms.  Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom....

Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws.  The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter."....

The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump traditional concerns about due process and just punishment.  By hearing these cases, it can begin to repair the damage it has done to those principles.

September 27, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20)

Tuesday, September 26, 2017

DOJ seeking DC Circuit en banc review of panel ruling finding 30-year mandatory minimums unconstitutionally excessive for Blackwater contractors who killed Iraqis

In this post last month, I noted the remarkable split DC Circuit panel opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here).  I am now not surprised to learn from this news report that the "Justice Department asked a full federal appeals court Monday to review a decision to throw out the first-degree murder conviction of one former Blackwater Worldwide security guard and the sentences of three others in shootings that killed 14 unarmed Iraqi civilians in Baghdad in 2007."  Here are the details:

Acting Solicitor General Jeffrey B. Wall approved the decision, which was expected and filed by appeals lawyers for the department’s criminal division, to seek a full court review by the U.S. Court of Appeals for the D.C. Circuit, after a three-judge panel ruled Aug. 4.

The panel said a trial court “abused its discretion” in not allowing Nicholas A. Slatten, 33, of Sparta, Tenn., to be tried separately from his three co-defendants in 2014 even though one of them said he, not Slatten, fired the first shots in the massacre.  Slatten was convicted of murder.

By a separate, 2-to-1 vote, the panel also found that the 30-year terms of the others convicted of manslaughter and attempted manslaughter — Paul A. Slough, 37, of Keller, Tex.; Evan S. Liberty, 35, of Rochester, N.H.; and Dustin L. Heard, 36, of Maryville, Tenn. — violated the constitutional prohibition against “cruel and unusual punishment.”  They received the enhanced penalty because they were also convicted of using military firearms while committing a felony, a charge that primarily has been aimed at gang members and never before been used against security contractors given military weapons by the U.S. government.

The Justice Department filing called the panel’s sentencing finding “as wrong as it is unprecedented,” saying the U.S. Supreme Court has upheld longer sentences for lesser crimes. “By its plain terms, the statute applies to defendants, who used their most fearsome weapons to open fire on defenseless men, women, and children,” the department said. “Far from being unconstitutional, these sentences befit the ‘enormity’ of defendants’ crimes.”

The government also cited “legal and factual errors” in the ruling granting Slatten a retrial, noting the “great international consequence” of his prosecution for “a humanitarian and diplomatic disaster.” A retrial in “a prosecution of this magnitude (including reassembling the many Iraqi witnesses) poses considerable and uncommon challenges,” the department wrote, urging the full court to reconsider “in a case of such exceptional importance.”

In their own filing Monday, attorneys for the four men asked the full court to toss out the case on jurisdictional grounds and so reverse the panel’s finding that civilian contractors supporting the Pentagon could be prosecuted under the Military Extraterritorial Jurisdiction Act....

A group representing family members and friends of the four tweeted a statement from Slatten last month that said, “Public outrage may be our only chance at true justice for all four of us. While it may be too early to seek pardons for my brothers from President Trump, he especially needs to hear from you.”

I have been meaning to write more about the extraordinary Eighth Amendment analysis in the Slatten decision, but I have been holding back in part due to my sense that en banc or even certiorari review may be forthcoming. The jurisprudential and political elements of this case are truly fascinating, and I really have no idea if the full DC Circuit and/or SCOTUS may want to take up this hot potato of a case. And in the wake of the Arpaio pardon, perhaps Prez Trump will be inclined to jump into the case at some point, too.

Prior related post:

September 26, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Retributive Justifications for Jail Diversion of Individuals with Mental Disorder"

The title of this post is the title of this new paper posted to SSRN authored by E. Lea Johnston. Here is the abstract:

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses.  These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services.  Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial.

This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice.  Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert.  Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders.  The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

September 26, 2017 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 25, 2017

Reviewing the racial bias and other concerns surrounding Georgia's planned execution of Keith Tharpe

CNN has this new article reviewing issues being raised in the run-up a scheduled execution in Georgia.  The article is headlined "Questions of racial bias surround black man's imminent execution," and here are excerpts:

The state of Georgia is set to carry out its second execution of the year on Tuesday, when it plans to put to death Keith Tharpe, who was sentenced in 1991 for murdering his sister-in-law.  But Tharpe, 59, and his attorneys are seeking a stay of execution, based in part on racist comments a juror made after the trial had ended.  Tharpe is black and the now-deceased juror who made the comments was white.

The attorneys are not claiming that Tharpe is innocent of the crimes for which he's been convicted. Rather, they are arguing that his death sentence should be overturned because of juror misconduct.  They say Tharpe's death sentence was the result of a racially biased juror who, in a post-trial interview seven years after Tharpe's conviction and sentencing, used the n-word and wondered "if black people even have souls."

A biased juror, they argue, violates Tharpe's constitutional rights to a fair trial, guaranteed by the Sixth Amendment.  They also argue that the juror lied during jury selection, concealing the fact that he knew the victim's family. Furthermore, the attorneys say Tharpe is intellectually disabled, which would make it illegal for him to be executed under federal law....

At the time of his crime, September 25, 1990, Tharpe and his wife were estranged. Prosecutors said Tharpe stopped his wife and sister-in-law in the road as they drove to work, according to court filings from the federal district court. The documents say he took his sister-in-law, Jacquelin Freeman, to the back of the vehicle and shot her with a shotgun before throwing her into a ditch and shooting her again, killing her. An autopsy showed Freeman had been shot three times.  Prosecutors alleged Tharpe then raped his wife and took her to withdraw money from a credit union, where she was able to call police for help, according to the documents. Three months later, convicted of malice murder and kidnapping, Tharpe was sentenced to death. 

Tharpe's current case centers on the post-conviction testimony of Barney Gattie, a white juror in Tharpe's trial....  Brian Kammer, Tharpe's attorney with the Georgia Resource Center, said Gattie showed in his interview that he "harbored very atrocious, racist views about black people."  Tharpe's lawyers claim Gattie, who is now deceased, used the n-word with the lawyers throughout the interview, in reference to Tharpe and other black people....

Georgia law states that juror testimony cannot be used to impeach the verdict, or render it invalid -- even if it involves racial bias, Kammer said.  At the time Gattie made the statements in question, this rule kept Tharpe's attorneys from being able to use them to prove his death sentence was the result of racial bias.  In Georgia, defendants can only receive a death sentence if the jury reaches the decision unanimously.

But Kammer and his team are relying on some recent United States Supreme Court decisions to back their motion for a stay of execution.  The central one, Kammer told CNN, is Pena-Rodriguez v Colorado.  In March, the US Supreme Court held in a 5-3 vote that laws like Georgia's are invalidated when a juror "makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant," Justice Anthony Kennedy wrote in the majority opinion.

Essentially, a juror's racial bias constitutes a violation of a defendant's rights to an impartial jury guaranteed by the Sixth Amendment, and prevents defendants from being able to prove a violation of their constitutional rights.  "A constitutional rule that racial bias in the justice system must be addressed -- including, in some instances, after the verdict has been entered -- is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right," Kennedy said.

Tharpe's request for a stay was denied by the 11th Circuit Court on September 21.  A federal district court denied Tharpe's motion seeking a reopening to federal habeas proceedings on September 5, the day before the state issued a warrant for his execution.

September 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (12)

Lots more notable new reporting and commentary from The Marshall Project

Regular readers surely recall prior times I have flagged the always terrific Marshall Project for producing many great pieces that should be must-reads for sentencing fans.  As I have said before, I rarely have the time or ability to give blog attention to all of the great work done there.  But I could not resist another shout-out post upon seeing in recent days a bunch of pieces with original reporting and commentary that all struck me as particularly blog-worthy (with the last three connected):

September 25, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (5)

Friday, September 22, 2017

"Legal vs. Factual Normative Questions & the True Scope of Ring"

The title of this post is the title of this new paper authored by Emad Atiq available via SSRN. Here is the abstract:

When is a normative question a question of law rather than a question of fact?  The short answer, based on common law and constitutional rulings, is: it depends.  For example, if the question concerns the fairness of contractual terms, it is a question of law.  If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact.  If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court’s seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case law cannot be explained by traditional accounts of the law/fact distinction and has fueled recent skepticism about the possibility of gleaning a coherent principle from judicial rulings.

This Article clarifies a principle implicit in the settled classifications.  I suggest that judicial practice is consistent: it can be explained by the distinction between normative questions that are convention-dependent and those that are convention-independent.  Convention-dependent normative questions, or those that turn essentially on facts about conventions (roughly, what we do around here) are reasonably classified as questions of law.  By contrast, convention-independent normative questions, which turn primarily on fundamental moral norms, are properly classified as questions of fact.  This principle, echoed in recent holdings, clarifies law/fact classifications in such diverse areas as torts, contracts, First Amendment law and criminal procedure.

The principle also promises to resolve a looming constitutional controversy.  In Ring v Arizona, the Supreme Court held that all factual findings that increase a capital defendant’s sentence must be decided by the jury under the 6th Amendment.  Two recent denials of cert. suggest that members of the Court wish to revisit, in light of Ring, the constitutionality of judges deciding whether a criminal defendant deserves the death penalty.  Applying the principle to Ring, I argue that the question of death-deservingness is a convention-independent normative question, and for that reason should be deemed a factual question for the jury.

September 22, 2017 in Blakely Commentary and News, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, September 21, 2017

Ohio intermediate appeals court, finding functional LWOP sentence excessive for multiple burglaries, cuts 50 years off term

A helpful former student alerted me to an interesting state appeals court ruling in my own backyard handed down last week. Even though the ruling in State v. Gwynne, 2017-Ohio-7570 (5th Dist. Sept. 11, 2017) (available here), is pretty brief, the issues raised by both the case facts and the state appeals ruling could occupy an entire modern sentencing course. Here are some snippets that should prompt sentencing fans to check out the full opinion:

Defendant-Appellant [stole] from at least 12 different nursing homes and assisted living facilities in both Delaware and Franklin counties over the course of eight years. Detectives were unable to connect all of the property to its rightful owners. During part of appellant’s spree, she was employed as a nurse’s aide.  After she was fired for suspicion of theft, however, she continued to dress as a nurse’s aide, in order to enter nursing homes and steal from residents while appearing to be a legitimate employee....

At the change of plea hearing, appellant admitted that she had been stealing from nursing home residents since 2004, four years earlier than the earliest charge in the indictment.  Some residents she knew and worked with, others she did not.  She claimed a cocaine habit was to blame, and that she took cash as well as other items to sell to support her habit.

At the sentencing hearing held on November 7, 2016, the trial court indicated it had reviewed the PSI, sentencing memoranda from the state and appellant, as well as the victim impact statements.  The state recommended 42 years incarceration.  Counsel for appellant advocated for intensive supervision community control, and a period of time in a community based correctional facility.

After considering all of the applicable sentencing statutes, and making all of the required findings, the trial court imposed a sentence of three years for each of the 15 second degree felony burglaries, 12 months for each of the third degree felony thefts, 12 months for each of the fourth degree felony thefts, and 180 days for each first degree misdemeanor receiving stolen property.  The court ordered appellant to serve the felony sentences consecutively, and the misdemeanor sentences concurrently for an aggregate of 65 years incarceration....

Appellant was 55 years old at the time of her sentencing....

We do not minimize the seriousness of appellant's conduct. On this record, however, we find the stated prison term of 65 years does not comply with the purposes and principals of felony sentencing....  A sentence of 65 is plainly excessive.  It can be affirmatively stated that a 65 year sentence is a life sentence for appellant.  Even a sentence of 20 years, considering the purposes and principles of sentencing and weighed against the factual circumstances of this case, would seem excessive.

The sentence is an emotional response to very serious and reprehensible conduct.  However, the understandably strong feelings must be tempered by a sanction clearly and convincingly based upon the record to effectuate the purposes of sentencing.  The sentence imposed here does not do so.  It is disproportionate to the conduct and the impact on any and all of the victims either individually or collectively.  It runs the risk of lessening public respect for the judicial system.  The imposition of a 65 year sentence for a series of non-violent theft offenses for a first-time felon shocks the consciousness.  We therefore find by clear and convincing evidence that the record does not support the sentence.....

We agree, however, with the trial court’s findings relating to the necessity of a prison sentence, and that consecutive sentences are warranted.  We therefore modify appellant’s sentence pursuant to R.C. 2953.08(G)(2) ... [to reach] an aggregate term of 15 years of incarceration.  Given the facts of this case, we find 15 years incarceration consistent with the principles and purposes of sentencing.

Though much can be said about this case, the scope of imprisonment considered at every level of this case startles me and yet I fear startles few others. Prosecutors, even after getting a plea, claimed that this woman at age 55 needed to be subject to 42 years incarceration, at the end of which she would be 97 years old.  The judge apparently decided that was not harsh enough, and thus imposed a sentence that would run until this woman was 130!  Thanks to an unusual appeals court ruling, this defendant now has to be grateful she will only be imprisoned until age 70.  Wowsa.

September 21, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Federal prosecutors say Anthony Weiner merits years in prison for his online sexual offense

As reported in this AP piece, headlined "Government: Prison fits Weiner's sex crime on teen victim," federal prosecutors have filed their sentencing recommendation in the Anthony Weiner case. Here are the details:

Former U.S. Rep. Anthony Weiner is more than a serial digital philanderer — he's a danger to the public who deserves two years in prison for encouraging a 15-year-old girl to engage in online sex acts, prosecutors told a judge Wednesday. A Manhattan judge is scheduled to sentence the New York Democrat on Monday for transferring obscene material to a minor.

The government urged the judge to put Weiner's claims of a therapeutic awakening in a context of a man who made similar claims after embarrassing, widely publicized interactions with adult women before encountering the teenager online in January 2016. Prosecutors said his conduct "suggests a dangerous level of denial and lack of self-control."

"This is not merely a 'sexting' case," prosecutors wrote. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger. ... Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.' Weiner's criminal conduct was very serious, and the sentence imposed should reflect that seriousness."

Weiner, 53, said in a submission last week that he's undergoing treatment and is profoundly sorry for subjecting the North Carolina high school student to what his lawyers called his "deep sickness." Prosecutors attacked some of Weiner's arguments for seeking leniency and noted his full awareness beforehand of his crime, citing his co-sponsorship in January 2007 of a bill to require sex offenders to register their email and instant message addresses with the National Sex Offender Registry....

The government said Weiner's "widely-reported prior scandals" were not criminal in nature and did not involve minors but should be considered at sentencing because they reveal a familiar pattern. "He initially denied his conduct; he suffered personal and professional consequences; he publicly apologized and claimed reform. Yet, he has, on multiple occasions, continued to engage in the very conduct he swore off, progressing from that which is self-destructive to that which is also destructive to a teenage girl," prosecutors said.  They added: "Weiner's demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation."

Defense lawyers had portrayed the girl as an aggressor, saying she wanted to generate material for a book and possibly influence the presidential election. Prosecutors responded that Weiner should be sentenced for what he did, and his victim's motives should not influence his punishment. A defense lawyer declined to comment Wednesday.

In a plea bargain, Weiner has agreed not to appeal any sentence between 21 and 27 months.  Prosecutors said the sentence should fall within that span, and they noted that Probation Office authorities had recommended a 27-month prison term.

Prior related posts:

September 21, 2017 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (10)

Wednesday, September 20, 2017

"Jeff Sessions’s evidence-free crime strategy"

The title of this post is the headline of this new Hill commentary authored by prominent criminologist David Kennedy. Here are excerpts: 

The emerging Department of Justice crime-control strategy is a criminologist’s nightmare. Over the last thirty years researchers, law enforcement leaders and communities have pushed for smarter, better violence prevention — spurred in large part by the incredible violence and community destruction of the crack era, and the utter failure of existing approaches to do anything about it.

It’s paid dividends. We now know a lot about what works and what doesn’t. That knowledge begins, as Attorney General Jeff Sessions himself says, with the fact that “the vast majority of people just want to obey the law and live their lives. A disproportionate amount of crime is committed by a small group of criminals.”

That’s exactly right. The most important discovery about violence in the last decades is that it’s what Harvard University researcher Thomas Abt calls “sticky.” Studies in city after city show that very small, active networks of extraordinarily high-risk victims and offenders — about one-half of 1 percent of the population — are associated with 60 percent to 75 percent of all homicide, and that 5 percent or so of blocks and street corners is similarly associated. And while many people use drugs, those involved in meaningful drug distribution — particularly the most active and violent of them — are also relatively few.

So what should we to do about this “small group of criminals?” It’s a critical question. Sessions has called for a return to the “war on drugs” menu — more law enforcement, mandatory minimums and long sentences, even the anti-drug D.A.R.E. program — plus a new focus on heavy immigration enforcement and a withdrawal from DOJ attention to police misconduct. But we now know for a fact that these things don’t work, and can actually make matters worse.

To understand why, and to see what does work, we should look to the groundbreaking front-line police and community actors who have been developing creative solutions that are more effective, less harmful and profoundly more respectful of traumatized and alienated communities than the old and demonstrably ineffective and discredited menu. They’re embracing new ways of focusing community engagement, social services and law enforcement to both protect and ensure accountability amongst Sessions’ “small group of criminals.” Work I’ve been involved in has law enforcement, community leaders and service providers sit down face-to-face with gang members and drug dealers, emphasize that the community hates the violence, offer to help anybody who wants it and explain the legal risks that come with violence. The result can be dramatic reductions in both violence and enforcement....

The best new crime prevention work recognizes the absolute centrality of what scholars call “legitimacy” — the community perception that authorities are respectful, unbiased, well-intentioned and have the standing to expect compliance. Breaking the bond between communities and the law does profound damage. As legitimacy goes down, crime reporting and cooperation with police and prosecutors go down, and violence goes up. Recognizing the absolute centrality of trust, police are backing away from stop-and- frisk and “zero tolerance” and working hard to reduce police violence and enhance accountability.

The opposite is clearly happening now in Hispanic communities, newly terrified of immigration enforcement: Houston police chief Art Acevedo says robbery, assault, and rape reporting by Hispanic communities are all down, the latter by 43 percent. The administration’s new policies may in fact be creating a safety net for predators....

And draconian sentencing — despite its frequent common-sense appeal — simply isn’t that effective. Violent crime is overwhelmingly a young man’s game, and long sentences just keep prisoners locked up well after they would have stopped of their own accord: a Stanford study shows that three-strikes “lifers” released recently under California prison reform had a 1.3 percent recidivism rate, against nearly 45 percent for other California inmates. They don’t deter that well, in part because criminals discount their futures just like middle-class home buyers do: offenders have been found to view a 20-year prison sentence as only about six times as severe as a one-year stint. Offenders frequently don’t know that the massive federal sentences they may be exposed to even exist until they’re charged and it’s much too late.

Enforcement has also proved utterly pointless with respect to drug markets, where locked-up dealers are easily replaced by new ones. The drug war was incapable of keeping drugs out of the country, from being produced domestically or from being sold and bought freely. It’s unlikely to do better in an age of fentanyl mail-ordered over the dark web. And as for D.A.R.E. — words fail. Criminologists are a cranky bunch, but there’s one thing that they all agree on: D.A.R.E. doesn’t work. By peddling misinformation about the dangers of drug use and telling huge numbers of impressionable kids that drugs and drug use are everywhere, the program can even increase abuse.

We need effective crime reduction strategies, just as we did in the '80s: Even before some cities recently started to see recent increases in homicide, violence suffered by poor minority communities — especially, young black men — was at intolerable levels. The opioid epidemic is hitting the country so hard it is reversing historic gains in life expectancy. We know enough to do better this time. We should do so, not willfully repeat the glaring and horrific mistakes of the recent past.

September 20, 2017 in National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, September 19, 2017

Pushing back on criticisms of AG Sessions returning Justice Department to "failed mindset of its past"

In this post last week, I noted the National Review commentary authored by two former US Attorneys which focused on the Sessions charging/sentencing memo to complain that "Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past."  I now have just noticed that Andrew McCarthy has penned this lengthy response at National Review under the headline "On Criminal Justice, Sessions Is Returning DOJ to the Rule of Law."  Here is an excerpt:

The authors lament that Sessions has reinstituted guidelines requiring prosecutors “to charge the most serious offenses and ask for the lengthiest prison sentences.” This, the authors insist, is a “one-size-fits-all policy” that “doesn’t work.” It marks a return to the supposedly “ineffective and damaging criminal-justice policies that were imposed in 2003,” upsetting the “bipartisan consensus” for “criminal-justice reform” that has supposedly seized “today’s America.”

This is so wrongheaded, it’s tough to decide where to begin.  In reality, what Sessions has done is return the Justice Department to the traditional guidance articulated nearly four decades ago by President Carter’s highly regarded attorney general, Benjamin Civiletti (and memorialized in the U.S. Attorney’s Manual).  It instructs prosecutors to charge the most serious, readily provable offense under the circumstances. Doesn’t work? This directive, in effect with little variation until the Obama years, is one of several factors that contributed to historic decreases in crime. When bad guys are prosecuted and incarcerated, they are not preying on our communities.

The thrust of the policy Sessions has revived is respect for the Constitution’s bedrock separation-of-powers principle. It requires faithful execution of laws enacted by Congress.... Absent this Justice Department directive that prosecutors must charge the most serious, readily provable offense, the executive branch becomes a law unto itself.  Bending congressional statutes to the executive’s policy preferences was the Obama approach to governance, so we should not be surprised that a pair of his appointed prosecutors see it as a model for criminal enforcement, too.  But it is not enforcement of the law.  It is executive imperialism....

Criminal statutes can be modified by legislation, which reflects the judgment of the people’s representatives.  The fact that they have not been, notwithstanding the purported “consensus” for “reform,” suggests that the public is not convinced of the need for such modification — or, perhaps, that our representatives grasp the need for a check on the judges. Unable to change the law, the “reformers” are reduced to arguing that justice happens only when prosecutors ignore the law.  If you’re Jeff Sessions and you say, “No, you know, I think we’ll have them follow the law,” you’re a Neanderthal....

Vance and Stewart have a point when they object to Attorney General Sessions’s unfortunate fondness for what they call “adoptive forfeiture policies.”  As we at National Review have contended (as has Justice Clarence Thomas, Kevin Williamson reminds us), civil asset forfeitures are property seizures without due process of law.  A federal spoils system incentivizes police to grab with both hands. Regardless of their effectiveness against drug lords, such forfeitures should be halted — the police should be required to proceed by criminal forfeiture and prosecution, with the due-process safeguards that entails. But that is because civil forfeitures offend the Constitution, not because they feed a left-wing narrative about fractured police–community relations.

Attorney General Sessions is enforcing the law, and doing so within a noble Justice Department tradition of giving force to Congress’s expression of the public will.  He is not altering the law by executive fiat, the preference of President Obama, Attorneys General Holder and Lynch, Professor Vance, Mr. Stewart, and the bipartisan minority they portray as a “consensus.”

There is a great deal I don’t like about the legal system either.  Statist government has enacted far too many laws, such that the federal government has criminalized too much of what used to be the province of state regulation — or unregulated private behavior.  The drug laws do have severe penalties and may work injustice in some cases — although fewer than Vance and Stewart suggest: Though the hands of federal judges are tied by mandatory minimums, they are not bound to follow advisory sentencing guidelines or prosecutorial recommendations.  I would certainly be open to mitigating penalties in exchange for thinning out the federal penal code and transferring areas of enforcement responsibility back to the states.  The point, however, is that this has to be done by legislation, not by executive autocrats under a stealthy distortion of prosecutorial discretion.

If Professor Vance and Mr. Stewart are right that we are in a new era, if the public has truly been won over to the notion that incarcerating criminals is counterproductive, the next step is very simple: Pass laws that amend the penal code.  In the meantime, the Justice Department’s job is to enforce the laws we have.  As Attorney General Sessions recognizes, that means charging the most serious, readily provable offense.

There is more to this commentary, and it merits a full read.  I have emphasized the points about the rule of law and the distinct roles of the distinct branches because it stands as the most conceptually principled defense of the Sessions Memo on prosecutorial policies.  At the same time, this defense lack a bit of nuance in failing to acknowledge that a large measure of congressional dysfunction, rather than the obvious will of the people, is precluding amendments to the federal penal code.

In red and blue states nationwide for nearly a decade, in various initiative votes from California to Oklahoma and from Alaska to Florida, the American people and their representative have been amending penal codes to be less harsh in many ways (especially to nonviolent offenders and marijuana users).  But very little similar work has gotten done in Congress largely because leadership will not even allow reform bills to come up for a full vote.  There are good reasons to think we could and would get many amendments to the federal penal code if up-or-down votes were allowed on various leading reform proposals --- e.g., the GOP-controlled Senate Judiciary Committee voted 75% in support of a massive sentencing reform bill in October 2015.  In light of the reality that significant federal sentencing reform seems to gets significant majority support when it gets a vote, one cannot quite say that full enforcement of existing federal criminal laws is fully compliant with the will of the people.

September 19, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, September 18, 2017

"Why Did a Federal Judge Sentence a Terminally Ill Mother to 75 Years for Health Care Fraud?"

The question in the title of this post is the headline of this recent law.com article about a notable (and notably harsh) federal sentencing.  Here are some of the details, with some commentary to follow:

A federal judge in Texas sentenced a terminally ill woman to 75 years in prison last month for bilking Medicare — an apparent record sentence for the U.S. Department of Justice for health care fraud.

Marie Neba, 53, of Sugar Land, Texas, was sentenced by U.S. District Judge Melinda Harmon of the Southern District of Texas on eight counts stemming from her role in a $13 million Medicare fraud scheme.  Neba, the owner and director of nursing at a Houston home health agency, was convicted after a two-week jury trial last November.  At the sentencing on Aug. 11, the government recommended a 35-year imprisonment, said Michael Khouri, who started representing Neba as her private attorney shortly after the trial... 

The unusually lengthy sentence for what health care fraud legal experts call a relatively routine case has them scratching their heads, even in this recent era of the federal government’s crackdown on health care fraud.  Neba, the mother of 7-year-old twin sons, was diagnosed in May with stage IV metastatic breast cancer that has spread to her lungs and bones, according to Khouri, who has filed an appeal of the conviction and the sentence.  She currently is receiving chemotherapy treatments and is in custody in a federal detention center.  “Marie Neba is a mother, a wife and a human being who is dying. If there is any defendant that stands before the court that deserves a below-guideline sentence … it’s this woman that stands before you,” Khouri argued before Harmon at the sentencing hearing, according to a transcript recently obtained by ALM....

Patrick Cotter, a former federal prosecutor who heads the government interaction and white-collar practice group at Greensfelder, Hemker & Gale in Chicago, said given the circumstances, he would have expected Neba to receive a sentence of several years in prison.  “Nothing is surprising in that she went to jail and not for six months,” he said. “But how you get anything close to 75 years is beyond me and makes no sense at all.  In 35 years, I have never heard of the government’s [prison term] recommendation being doubled by the judge, particularly when the government is asking for a tough sentence anyway.”

Gejaa Gobena, a litigation partner at Hogan Lovells and former chief of the DOJ Criminal Division’s Health Care Fraud Unit, concurred. “We prosecuted hundreds of cases and never had a sentence approaching anywhere near this,” Gobena said.

Legally, the answer to how the long sentence came about is not that difficult: Harmon, applying several enhancements under the federal sentencing guidelines, imposed the statutory maximum prison term on each charge, and then ran them consecutively.  “I am not a heartless person. I think I am not. I hope I am not,” Harmon told Neba before announcing the sentence. “It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”

Even so, historically, the case is highly unusual, breaking the previous record by 25 years.  Since a pair of U.S. Supreme Court decisions in December 2007 that reaffirmed that the federal sentencing guidelines are merely advisory, federal trial judges have much greater latitude to impose what they think are appropriate sentences, even if the guidelines call for higher or lower sentences.  The longest health care fraud sentence prior to Neba’s came in 2011, when Lawrence Duran, the owner of a Miami-area mental health care company, was sentenced to 50 years for orchestrating a $205 million Medicare scheme that defrauded vulnerable patients with dementia and substance abuse. The next longest? Forty-five years in 2015 for a Detroit doctor who gave chemotherapy to healthy patients, whom federal prosecutors then called the “most egregious fraudster in the history of this country.”

According to court documents, Neba, from 2006 to 2015, conspired with others to defraud Medicare by submitting more than $10 million in false claims for home health services provided through Fiango Home Healthcare Inc., owned by Neba and her husband and co-defendant, Ebong Tilong. Using that money, Neba paid illegal kickbacks to patient recruiters for referrals and to Medicare beneficiaries who allowed Fiango to use their Medicare information to bill for home health services that were not medically necessary nor provided, and, all told, received $13 million in ill-gotten Medicare payments, the documents said.

Neba was convicted of one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, one count of payment and receipt of health care kickbacks, one count of conspiracy to launder monetary instruments and one count of making health care false statements.

Four co-defendants, including Tilong, have pleaded guilty in the case. He is scheduled to be sentenced on Oct. 13....

Harmon, through her case manager, declined to comment on the case. The transcript, however, reveals several factors that influenced her decision to impose the lengthy prison term, including: “Most importantly,” Neba’s sentencing guideline range of life imprisonment (though Harmon was proscribed by statutory maximums from imposing a life sentence);..... Neba’s attempt to obstruct justice by telling a co-defendant, before arraignment in the federal courthouse, “to keep to her story,” specifically “not to tell anybody that she, [the co-defendant], was paying the patients.”

Neba’s decision to go to trial on the charges, rather than plead guilty and provide some sort of government assistance, also played a role in her sentence. Had she pleaded guilty to one or more of the charges “at the very beginning without obstruction of justice,” and received the highest credit for cooperation for doing so, Neba’s sentencing guideline range would have been 14.5 years, federal prosecutor William Chang told Harmon during the hearing. “Had the same thing happened and she received no [credit] whatsoever, it would be 21.8 years,” he added. “If she had gone to trial and been convicted, but no obstruction of justice, the sentence would have been 30 years on the calculation of the guidelines. So, we want the court to understand the United States’ principal position for what it seeks.”

Khouri, Neba’s attorney, said he plans to challenge on appeal the manner in which the sentencing guideline range was calculated and argue, among other matters, that the sentence is excessive.

I have quoted so much of this press report because the more details it provides, the more perverse the entire federal sentencing system seems along with the perversity of this particularly extreme sentence. For starters, though we supposedly have a federal sentencing system designed to sentence a defendant based principally on the seriousness of her offense, this defendant's guideline range ballooned from less than 15 years imprisonment to life imprisonment essentially because she put the government to its burden of proof at a trial and said the wrong thing to a co-defendant.

Trial penalty guideline calculations notwithstanding, now that the guidelines are advisory, a prosecutor and a judge would need to be able to justify such an extreme functional LWOP sentence based on all the 3553(a) statutory factors. No matter how seriously one regards health care fraud, I cannot fully understand how any of these factors (save the guideline range) can support this extreme sentence in this not-so-extreme case of fraud.  If reasonableness review has any substance whatsoever, and if the facts in this article are accurate, it seems to me that this sentence ought to be found substantive unreasonable.

September 18, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Might Justice Gorsuch juice up the SCOTUS sentencing docket ... perhaps starting with IAC case from Arkansas?

The SCOTUS sentencing docket has felt relatively muted to me in recent years, due in part to transition issues after Justice Scalia's unexpected death and due in part to Apprendi and Booker jurisprudence no longer garnering much of the Court's attention.  Of course, the application of Eighth Amendment doctrines after Miller and Graham and vagueness doctrines after Johnson can and will continue to provide grist for the SCOTUS sentencing mill, and it also still seems no SCOTUS Term would be complete without a few capital cases on the docket.  Nevertheless, with SCOTUS soon to have its “long conference” in which the Justices will consider all the cert petitions that stacked up over the summer, I find myself not really expecting exciting cert grants on many (or perhaps any) issues that will rev up sentencing fans.

That said, and as the title of this post suggests, perhaps new personnel at SCOTUS could mean some new juice for the SCOTUS sentencing docket.  As noted in this post from May, Justice Gorsuch has opted out of the cert pool, and I suspect that could lead him to be more engaged with criminal cases that may get short shrift through the cert pool screening process. In addition, as detailed in this prior post, Justice Gorsuch had a remarkable little concurrence in a federal mandatory-minimum sentencing case, Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here), right before all the Justices left for summer vacation.  Though these tea leaves hardly ensure that the new guy is a vote for cert in all the sentencing cases I find interesting, it remains fun to speculate whether Justice Gorsuch's libertarian-leaning instincts might make him more inclined to vote to review petitions of criminal defendants than some of his colleagues.

If Justice Gorsuch is looking for cert worthy sentencing cases, Carissa Byrne Hessick tees one up in this new post over at PrawfsBlawg, titled "Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing."  Here is how that posting gets started:

Earlier this summer, I helped write a cert petition for the US Supreme Court.  The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf.  Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001).  And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards.  And several federal district courts have started to question how they ought to assess these claims.

September 18, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Noting judicial resistance (and legal questions) as Ohio law pushes judges to avoid state prison sentences for certain offenders

This fascinating article in the Columbus Dispatch, headlined "Some Ohio counties leery of Kasich program to divert low-level offenders from prison," highlights a novel and controversial new  sentencing law in Ohio that some local judges and official plainly dislike. Here are excerpts:

The 43-year-old career criminal broke into three Obetz businesses — a market and two pizza parlors — by smashing windows or door glass with rocks and concrete blocks over a four-day period last summer.  A Franklin County Common Pleas judge sent him to prison for two years, a decision that was upheld last week by the county court of appeals.  But under a program in which Franklin County will be required to participate beginning next July, the state will penalize the county for sending such an offender to prison.

The Targeted Community Alternatives to Prison program, approved by legislators in June as part of the state budget, seeks to reduce the prison population by diverting nonviolent, low-level felons to probation, local jails or community-based programs.  In return, the counties will receive grants from the state Department of Rehabilitation and Correction to offset the cost of supervising, treating or jailing those offenders in their communities.

The program, advocated by prisons Director Gary Mohr and Gov. John Kasich, has received opposition from judges and prosecutors across the state since it was proposed.  Most judges don’t like it because “it infringes on our discretion by telling us there are certain felons we can’t send to prison,” said Judge Stephen L. McIntosh, the administrative judge for Franklin County Common Pleas Court.

Some counties have decided that the grant money being offered by the state won’t be enough to cover the costs of keeping offenders in the community who otherwise would have gone to prison.  Others have offered a harsh assessment of a program that gives grants to judges in exchange for keeping certain offenders out of prison.  “Essentially what judges are being offered is a bribe,” Stark County Common Pleas Judge Kristin Farmer said in August when she and her colleagues on the bench encouraged their county commissioners not to participate in the program this year....

Franklin and Stark are among the state’s 10 largest counties, all of which are mandated under the law to participate in the program beginning July 1, 2018.  Franklin County’s Common Pleas judges will meet Tuesday to decide whether to participate in the program before the mandate kicks in, McIntosh said.  Last week, Cuyahoga County joined Stark in deciding not to implement the program until next summer. “The state’s offer of resources is completely inadequate to the demands that it will put on our local jails and our systems,” Armond Budish, the Cuyahoga County executive, said in a news release....

Under the program, offenders convicted of fifth-degree felonies, the lowest felony level, are not to be sentenced to prison unless they’ve committed a violent offense, a sex crime or a drug-trafficking offense.  The state correction department estimated that 4,000 such offenders were sent to prison last year.  If a participating county sends someone to prison in violation of the criteria, their grant money will be docked $72 a day for each day the offender is held in a state facility.

Clinton County Common Pleas Judge John W. “Tim” Rudduck has been participating since October in a pilot program to test the concept and is a vocal supporter of its benefits. “I’m looking at it from the perspective of a single judge in a semi-rural county with limited resources,” he said.  “The money we have received has been instrumental in developing resources (to support alternatives to prison) that we never had before.”  Before the program was implemented, some offenders were going to prison simply because Clinton County didn’t have the resources to treat or supervise them in the community, he said.

The program is voluntary for 78 counties. So far, 48 counties have agreed to implement the program....  A system in which some Ohio counties follow the program and other don’t is “patently unconstitutional,” said Franklin County Prosecutor Ron O’Brien.  The Ohio Constitution, he said, requires “uniform operation” of all laws.  That concept is violated when a defendant receives a prison sentence in one county for an offense for which he would be prohibited from receiving prison in another.

Those “equal protection” concerns are almost certain to lead to legal challenges for the program, said Paul Pfeifer, executive director of the Ohio Judicial Conference.  “I’d fully expect a test case to be filed on that issue,” said Pfeifer, a former state Supreme Court justice and state senator.  His organization, which represents all judges in Ohio, has expressed concerns about the program, but wants to work with judges to make its implementation as smooth as possible now that it’s the law, he said.

September 18, 2017 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, September 16, 2017

"Criminalizing Race: Racial Disparities in Plea Bargaining"

The title of this post is the title of this notable new paper authored by Carlos Berdejó available via SSRN. Here is its abstract:

Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints — the arrest and initial charging of defendants and judges’ sentencing decisions.  Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion.  This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction.

The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime.  As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.  Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.

Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating racial disparities.  While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors.  These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.

September 16, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Friday, September 15, 2017

Advocacy for the "the smart way to get 'tough' about crime"

Brandon Garrett has this new CNN commentary discussing some of the themes in his new book titled "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice." Here is hoe it starts and ends:

It is time to retire the phrase "tough on crime."  There is nothing tough about the harsh punishments that contributed to mass incarceration in this country.  In fact, the opposite is true; as the latest data show, a nationwide push in the past decade to move away from these failed approaches has coincided with a remarkable decline in crime.  Instead of being "tough," we need to be smart.

Multiple states have passed laws to end cash bail, reduce mandatory sentences, invest in addiction and mental health treatment, and divert convicts toward alternatives to incarceration.  Even states such as Louisiana, with the highest incarceration rate in the world, just passed reforms and is currently reviewing 16,000 sentences for possible reduction.  Cities such as Oklahoma City and Houston have taken new steps to reduce jail populations.

And crime continues to fall.  According to a Brennan Center report released on Wednesday, violent crime is back down again so far in 2017, after a spike in 2015-16 in certain cities.  This year is projected to be the year with the second-lowest crime rate in 25 years.  Murder rates are down 2.5%, with declines in cities such as Chicago that accounted for the blip in 2015 and 2016.

So contrary to what some politicians say, there is no national crime wave; it is more like a lake drying up.  Even the localized crime bumps in a handful of cities seem to be subsiding.  We don't need a new war on crime when we are winning the peace....

Now is the time to redouble efforts to focus on deeper reductions in imprisonment, charging, sentencing and release and reentry of prisoners.  Even if the President and the attorney general are trying to redouble the war on drugs, as if we were still living in the 1980s, those days are far behind us.  Reform is working and crime is still falling.  We need to push it farther to shrink our bloated criminal justice system.  That is the smart way to get "tough" about crime.

September 15, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, September 14, 2017

"Fragmentation and Democracy in the Constitutional Law of Punishment"

The title of this post is the title of this recently published paper that I recently noticed authored by Richard Bierschbach.  Here is its abstract:

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy.  But the relationship of such principles to democracy in criminal punishment has received less attention.  This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice.  On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern.  At the same time, the potentially positive aspects of fragmentation can backfire, encouraging tunnel vision, replicating power differentials, and making it easier for more well-resourced voices to drown out others.  Thus, the same structure that generates valuable democratic benefits for punishment also falls prey and contributes to serious democratic deficits.  But despite its drawbacks, we cannot and should not abandon the Constitution’s fragmented approach to crime and punishment.  The more promising move is to look for ways to make different loci of influence and representation more meaningful within our existing framework, doing more to ensure that multiple voices are heard.

September 14, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, September 13, 2017

"Brock Turner: Sorting Through the Noise"

The title of this post is the title of this notable paper recent posted to SSRN authored by Michael Vitiello. Here is the abstract:

This article begins with a quick test. The author asks his readers to spend a few moments reacting to “Brock Turner.” In response, no doubt, many think, “Stanford rapist,” “white privilege,” “special treatment for an elite college athlete,” and perhaps, “illegal sentence."  Certainly, that reaction is not surprising, given racial bias in sentencing and special treatment for elite college athletes.

The public response to Judge Aaron Persky’s sentence was quite negative even before Stanford Law Professor Michele Landis Dauber, a family friend of the victim, began a recall effort. The recall efforts have kept the case in the public’s eye.  While some members of the public and profession have spoken out against the recall, it seems to be on pace to get on the ballot in the fall of this year.

As troubling as Turner’s sentence is for many observers, issues posed by a judicial recall are quite distinct.  The article challenges the media for its role in inflaming public opinion about the case.  While the sentence seems far too short in light of Turner’s conduct, an examination of California sentencing criteria, as well as the probation report that Judge Persky relied on in determining Turner’s sentence, makes the case more complicated than widely reported in the media.  Even assuming that one disagrees with Judge Persky’s sentence, the article argues that California has led the nation in over reliance on long prison sentences, the result of all-too-familiar-get-tough-on-crime rhetoric. That has led the state to spend unnecessary billions of dollars warehousing offenders who do not represent a serious public safety risk.  The article concludes that judicial recall will result in unnecessary additional years of imprisonment for criminal defendants because judges, consciously or unconsciously, may fear for their livelihood if vocal members of the public deem their sentences too lenient.

September 13, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14)

Former US Attorneys lament AG Sessions' charging memo as returning Justice Department to "failed mindset of its past"

This notable new National Review commentary, headlined "On Criminal Justice, Sessions Is Returning DOJ to the Failed Policies of the Past," is authored by Joyce Vance, the former US Attorney for the Northern District of Alabama, and Carter Stewart, the former U.S. attorney for the Southern District of Ohio.  Here are excerpts, with some commentary to follow:

True to form, Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past.  In implementing his own tough-on-crime mantra, he has required prosecutors, in virtually all cases, to charge the most serious offenses and ask for the lengthiest prison sentences.

Americans have seen this one-size-fits-all policy in action before. It doesn’t work. Today’s America is often a world where everyone adheres to their confirmed views and there is little exchange of information and ideas across political divides. So, when the rare issue comes along that generates a bipartisan consensus, it should be worth seriously considering.

Criminal-justice reform is one of those issues.  Yet Attorney General Sessions continues to roll back previously instituted changes that were beginning to reduce America’s prison population, the justice system’s costs, and crime.  He is doing so despite the consensus that produced those changes. We should not let this rare opportunity to reform a badly broken criminal-justice system fade away, nor should we permit the consensus on reform to shatter under the consuming cover of national scandal.

Sessions’s charging policy memo, editorials, and planned state tour to push for a crackdown on crime all resemble ineffective and damaging criminal-justice policies that were imposed in 2003. Although those policies’ stated goal was originally to create nationwide uniformity in the justice system, they resulted in the proliferation of questionable prosecutions, and the Bureau of Prisons’ population swelled to its highest level in history, consuming almost one-third of the Department of Justice’s annual budget. One side effect of this fiasco that lingers today is the broken relationship between police departments and the communities they are sworn to serve and protect. The attorney general is aggravating that tension with his recent revival of adoptive forfeiture policies, giving local and state law enforcement a federal benediction to seize the property of suspected criminals. Distrust impedes community cooperation with law enforcement, and increased incarceration rates do little to decrease crime.

The excessive reliance on arrests and extended incarceration was unsustainable, it disparately impacted racial minorities and the poor, and it had a negligible impact on public safety.  People leaving prison are too often unable to find jobs because of their criminal records, and two-thirds of them re-offend within three years. It has become obvious that we must do more than just incarcerate people to make our communities safer.

That’s why, in 2013, DOJ promulgated the “Smart on Crime” initiative, which returned charging discretion to federal prosecutors and directed them to use a three-pronged approach: implement priorities for prosecuting the most serious crimes, advance prevention programs, and develop strategies to help people successfully re-enter the community after they’ve served their time. At its core, this approach recognized that each criminal defendant is a person, often with families and friends who care deeply about them....

“Tough on crime” strategies that rely on lengthy prison sentences and property seizure may permit politicians to sharpen their image in the eyes of voters, but they run afoul of justice and fail to deliver results. At the same time DOJ was modernizing its criminal-justice polices, many states were doing so as well.  Since 2007, 23 states have reformed their sentencing laws to focus law-enforcement resources on the most dangerous crimes. Often, federal law-enforcement officials worked hand in hand with their state and local counterparts to achieve progress. In Alabama, the legislature created a new felony category for the lowest level of drug and property offenses, sending offenders to less expensive and more effective community corrections programs instead of prison.  Ohio eliminated the disparity in criminal penalties between crack and powder cocaine offenses and raised the threshold requirements for felony-theft sentencing. As a result of similar policies, Texas has closed three prisons since 2005 and still enjoyed a 29 percent drop in crime. Georgia and North Carolina have adopted justice-reinvestment programs and had similar success.

As former U.S. Attorneys, we know firsthand that families across our country care about the safety of their communities above all else. We worked hand in hand with law enforcement, members of the community, and victims of crime to pursue those individuals who were the most dangerous. But we also know that an approach that uniformly imposes the harshest penalties on everyone risks damaging community trust and cooperation for generations, jeopardizing safety as a whole. Rehashing tough-on-crime policies based on disproved assumptions is a recipe for failure. The Department of Justice should move forward with its Smart on Crime public-safety and criminal-justice policies, using a proven approach that has reduced prison populations, costs, and crime in states that have implemented it. Justice is about more than just putting people in prison.

This commentary hits many of the themes now common to advocacy for smart-on-crime approaches over tough-on-crime approaches to crime and punishment. But it fails to grapple with the (too simple) reality that nationwide crime rates went down dramatically from 1991 to 2014 when tough-on-crime approaches defined much of the Justice Departments work and that crime rates started moving up significantly not long after DOJ promulgated its "Smart on Crime" initiative. Because of these crime data, AG Sessions and many others likely do not accept the assertion in this commentary that tough-on-crime postures by DOJ have a "negligible impact on public safety." Thanks to prior crime declines and recent crime increases, I think they actually believe tough-on-crime approaches, at least at the federal level, are absolutely essential to public safety.  Put differently, I suspect that AG Sessions now sees smart-on-crime approaches as the "failed mindset" and thus he seems very unlikely to be moved by these kinds of commentaries.

September 13, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, September 12, 2017

New op-ed and op-doc from New York Times takes on "A ‘Frightening’ Myth About Sex Offenders"

David Feige has a new op-ed and a short video documentary unpacking and attacking the notion that sex offender recidivism rates are extraordinarily high.  This op-ed is headlined "When Junk Science About Sex Offenders Infects the Supreme Court," and this op-doc is titled "A ‘Frightening’ Myth About Sex Offenders."  Here is how the op-ed starts and ends:

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans.  Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.”  The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake.  The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release.  In the 24 years it has existed, not a single “patient” has ever been fully released.  There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness.  In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal.  They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.”  The problem is this: The 80 percent recidivism rate is an entirely invented number....

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear.  The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record.  More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study.  Simple decency and perhaps more important, intellectual honesty demands better.

A few prior recent related posts:

September 12, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Wishing for comparable efforts to contest severity in light of legal attacks on leniency of Arpaio pardon

The title of this post is my reaction to this Politico article headlined "Legal groups move to challenge Trump's Arpaio pardon."  The article reports on just some of the copious efforts to contest Prez Donald Trump's first use of his clemency authority.  Here are the basics:

Two advocacy groups moved on Monday to challenge Donald Trump’s pardon of controversial former Arizona Sheriff Joe Arpaio, alleging that the president's move was unconstitutional because it undermined the power of the federal judiciary.

A public interest law firm, the Roderick and Solange MacArthur Justice Center, sought to file an amicus brief in an Arizona district court, where Arpaio is seeking to vacate a conviction after Trump granted him a pardon last month. The brief was initially turned down by a judge on procedural grounds.  A second group, the Protect Democracy Project, also filed an amicus brief on Monday arguing that the pardon is unconstitutional....

The [MacArthur Justice Center] brief contends that Trump’s pardon of Arpaio violated the Constitution because “it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”  The MacArthur Justice Center lawyers argue that, while broad, presidential pardon power can not be used to undermine the judiciary’s ability to enforce the Bill of Rights or the Fourteenth Amendment.  The Arpaio pardon, the lawyers argue, “eviscerates this Court’s enforcement power...by endorsing Arpaio’s refusal to comply with federal court orders.” The brief also takes issue with the breadth of Trump’s pardon, noting that the “text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again...and escape criminal liability for future contempt.”

Protect Democracy’s lawyers similarly contend that the pardon violates the separation of powers “because it unconstitutionally interferes with the inherent powers of the Judicial Branch.” They also argue that the pardon goes beyond the president’s power — “We are aware of no case in this Court, the Ninth Circuit or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants,” the lawyers write — and violates due process.

This extended post by William Jacobson over at Legal insurrection, headlined "DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional," rightly notes the uphill battle these arguments face and concludes that "it seems highly unlikely that the court would declare that a pardon which on its face is constitutional is not because it involves contempt of court." It also details and links the four briefs sought to be filed against the Apraio pardon:

I full comprehend all the political and legal reasons why the Arpaio pardon bothers folks, and I will never tell thoughtful advocates that they are wasting their time by filing amicus brief even when the law seems against them.  But, as the title of this post indicated, I still rue the reality that partisan politics so readily energizes a bunch of folks spend lots of time and resources attacking one act of remarkable leniency while so many acts of remarkable severity in our criminal justice systems so rarely engenders even a peep from outside advocates.

September 12, 2017 in Celebrity sentencings, Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, September 11, 2017

Can a federal sentence really "be close to absurd" and yet also be affirmed as reasonable?

The peculiar and perhaps metaphysical question in the title of this post is prompted by a Second Circuit panel decision today in US v. Jones, No. 15‐1518 (2d Cir. Sept. 11, 2017) (available here). The Jones case get intricate thanks to the timing and uncertainties of criminal history litigation. The start of the panel opinion provides a flavor of the mess:

Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J.) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release.  The primary basis for Jones’ appeal is that, in light of the Supreme Court’s holding in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first‐degree robbery would automatically serve as one of the predicate offenses for a career offender designation.

After oral argument in this matter, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that the residual clause of the Career Offender Guideline — a second basis for finding a crime of violence — was not unconstitutional.  The Court reached this conclusion notwithstanding the government’s concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act (“ACCA”), was void for vagueness. In light of Beckles, we find that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones’ argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court.

Judge Calabresi (my former boss) authors a separate concurring opinion in which he explains the various factors and fortuities which he thinks requires an affirmance of a sentence that seems technically sound by infused with problems of timing and equity. I cannot briefly recount he are the curious particulars, but this sentence captures Judge Calabresi's obvious frustration:

What is more — and this may be the true source of my sense of absurdity — there appears to be no way in which we can ask the district court to reconsider the sentence it ordered in view of the happenstances that have worked against Jones, and in view of its assessment of Jones’ crimes and of its downward departure.

For what it is worth, I think reasonableness review can and should be a very flexible and robust means for circuit courts to require resentencing whenever it has a basis for being concerned, procedurally or substantively, with any aspects of the proceedings below in light of the sentencing commands of 3553(a). Consequently, I think the Second Circuit could have said simply that "happenstances that have worked against Jones" since the time of his initial sentencing cast new light on the 3553(a) factors and thus his sentence is procedurally unreasonable and he should be resentenced.

September 11, 2017 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Friday, September 08, 2017

Highlighting through St. Louis the enduring challenges of battling city crime with federal emphasis

Mark Obbie has this terrific lengthy new piece in Politico Magazine with full headline that captures its key themes: "Why Jeff Sessions’ Recycled Crime-Fighting Strategy Is Doomed to Fail: Funneling more gun criminals into federal prison won't reduce homicides. Just look at St. Louis." The article merits a full read, and here are its opening passages:

Newly minted Attorney General Jeff Sessions was in St. Louis, the latest stop on his tour to promote his muscular solution to what he called the “dangerous new trend” of the rising national violent crime rate.  Addressing a crowd of more than 200 federal and local law enforcement officials at the city’s towering federal courthouse in late March, he vowed to “use every lawful tool we have to get the most dangerous offenders off America’s streets.”

The Trump Justice Department has pushed a variety of strategies for reducing violent crime.  But the tool that Sessions prefers, the one he calls the “excellent model,” is to steer more gun-crime cases to federal court, where offenders face an average of six years in prison, compared with the lighter punishments that can result from state convictions — in Missouri, for instance, gun offenders charged under state laws generally get probation.  Sessions has instructed his U.S. attorneys to step up their gun-case loads, and they are heeding his mandate: In the second quarter of this year, federal firearms prosecutions jumped 23 percent over the same period in 2016.

In his St. Louis speech, Sessions praised the city’s U.S. attorney’s office for its aggressive pursuit of gun-law violators, framing its work as the first half of a tidy formula. “The more of them we put in jail,” he said, “the fewer murders we will have.”

But Sessions is dramatically overselling the effectiveness of his prosecution-heavy prescription, those who study gun violence say.  Researchers, in fact, long ago concluded that the long prison sentences and elevated incarceration rates that result from increasing federal prosecutions have scant influence on violent crime rates.  And St. Louis is a signal example of why Sessions’ strategy does not work as he promises.

No other city has already tried harder and longer to do exactly what Sessions is pushing for nationwide.  Since the 1990s, the St. Louis-based Eastern District of Missouri has remained in the top 10 federal court districts for per capita gun prosecution rates, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC).  In more recent years, the St. Louis office has only increased its intake of gun cases, leading the nation in 2016.

At the same time, St. Louis’ rates of homicide and serious crimes of all types are the worst in the country, and have been stuck at or near the top of that dubious list for at least 20 years.  The city recorded 188 homicides in each of the past two years — a two-decade high.  During the first six months of 2017, murders kept pace with those brutal levels. Nonfatal shootings were up an alarming 22 percent.

If St. Louis shows why Sessions’ approach to gun violence is destined to fail, what is a more effective role for federal authorities to play in reducing violent crime?  Public safety scholars say that it starts with recognizing that no two cities’ crime problems are exactly alike.  The next step is to create a menu of interventions tailored to meet local needs — and support them with reliable funding.

September 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, September 07, 2017

Notable reporting on a plea process after wrongful convictions

A help helpful readers have flag for me the latest work from ProPublica and The Atlantic examining how two wrongfully convicted men were treated after being proven innocent by DNA. The full headlines of the main piece and a companion provide a summary of a remarkable tale:

September 7, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives"

The title of this post is the title of this article recently posted to SSRN authored by Joshua Horton. Here is its abstract:

This article investigates the issues and possible societal solutions to the Drug War, Opiate Epidemic, Mass Incarceration and other collateral consequences of current policies in three distinct parts. First, it discusses the DeFelonization of drug possession and the ramifications this would have nationally. Next, it addresses the influx of drug users into the community that are currently receiving little to no rehabilitation behind bars. This country will need to find a revenue source to fund a massive rehabilitation effort. It will come from marijuana legalization. And lastly, I investigate an up and coming approach to recovery called Recovery Community Organizations (RCO's). These entities incorporate an innovative, holistic bottom up approach, as opposed to the current top-down, massive, paternalistic governmental and criminal justice approach.

September 7, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Just how should California implement Prop 57's call for prison releases?

The question in the title of this post is prompted by this local article headlined "Prop 57: Debate rages on about which inmates should be released early." Here are excerpts:

Ten months after California voters approved a proposition allowing thousands of prison inmates to apply for early release, a debate is still raging over who ought to be freed.

Proposition 57 left it to prison officials to clearly identify which crimes deemed nonviolent would qualify and how an inmate’s criminal history would affect eligibility. The public could weigh in during a 45-day comment period this summer — and boy, did they. More than 8,500 people threw in their two cents, in writing and at a public hearing in Sacramento last week. Now, the California Department of Corrections and Rehabilitation is sorting through bulging email boxes and stacks of letters from crime victims, inmates, prosecutors and reformers.

Meanwhile, under emergency regulations, prison officials have already notified prosecutors across California of more than 1,800 inmates who have applied for early parole. No figures are available until later this month on the number of inmates whose applications have been denied, approved or have actually been released. But a snapshot of the situation in two urban counties in Northern California shows relatively few people are being granted early parole, though it is impossible to tell if the trend will continue....

Ken Scheidegger, legal director of the Sacramento-based Criminal Justice Foundation, ... opposed Proposition 57 and is concerned about the early releases. “People got the idea a few years ago that prisons were full of harmless people,” Scheidegger said. “That is a widespread popular misconception.”

But proponents note that Proposition 57 was the third time since 2012 that voters overwhelmingly opted to ease California’s tough-on-crime laws to enhance rehabilitation, stop the revolving door of crime and prevent federal courts from indiscriminately releasing inmates to reduce prison crowding. “Prop. 57 is not a ‘get out of jail free’ card,” said Benee Vejar, an organizer with the civil rights group Silicon Valley De-Bug. “It’s asking for an early parole hearing and another chance.”...

The Department of Corrections and Rehabilitation has until Sept. 20th to develop the regulations, but it can ask for a 90-day extension. The debate over the Proposition 57 regulations is being fought along similar battle lines as the fight over the initiative itself.

Advocates, including Human Rights Watch, want prison officials to consider as many people as possible for early release. Law enforcement officials want to restrict who is eligible and change how the decisions are made. Both sides are calling for more rehabilitation programs. The state recently boosted the prison system’s rehab budget by $137 million. “We cannot repair the criminal justice system on the cheap,” said Rosen, the Santa Clara County district attorney. “If we want to improve the outcomes from prison, then we will need to change the experience of being in prison.”

The ... opponents’ chief complaint is that the initiative promised voters that only nonviolent inmates would be eligible for release. But under the existing regulations, certain violent offenders are eligible once they have completed their prison term for the violent felony, but are still serving time for a nonviolent felony they were also convicted of. The Legislative Analyst’s Office also raised questions about the provision. On the other hand, Proponents want to expand the pool of inmates. Currently, about 4,000 inmates with third strikes whose last offense was nonviolent are barred from applying for early parole. Yet according to the CDCR’s own public safety risk evaluations, nonviolent third-strikers are more than three times more likely to qualify as low risk than the currently eligible prisoners.

But opponents claim crime will rise under Proposition 57, a warning they have sounded since 2011 when Gov. Jerry Brown and the Legislature began scaling back the emphasis on incarceration in response to a federal court order about prison crowding and inhumane health care. Opponents point to the fact that violent crime in 2016 rose in the state — by 4.1 percent — unlike in the country as a whole. However, proponents note California’s violent crime rate remains comparable to levels seen in the late 1960s. And property crime was down 2.9 percent and remained lower than it was in 2010, before the reforms began....

Law enforcement officials also complain about the process. Among their concerns: Early parole applications are subject to a paper review, rather than a parole hearing; prosecutors only have 30 days to prepare a recommendation; only inmates may appeal the board’s decision; and police are cut out entirely. “My rank and file are on the front lines — they’re the ones who have to encounter these individuals once they’re on the streets,” San Jose police Chief Eddie Garcia said.

September 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, September 05, 2017

Split Tenth Circuit panel finds mandatory five-year prison term for violation of supervised release itself violates Fifth and Sixth Amendments

I just saw that an interesting and  important constitutional procedure opinion was handed down by the Tenth Circuit last week in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here).  Here is how the panel's majority opinion gets started and some of the opinion's substantive analysis:

The district court revoked Andre Ralph Haymond’s supervised release based in part on a finding that Haymond knowingly possessed thirteen images of child pornography. The district court imposed the mandatory minimum sentence required by 18 U.S.C. § 3583(k). Haymond appeals and argues that the evidence was insufficient to support a finding by a preponderance of the evidence that he possessed child pornography, and that 18 U.S.C. § 3583(k) is unconstitutional because it violates his right to due process.

We conclude that the evidence was sufficient to support the district court’s finding that Haymond violated the conditions of his supervised release, but we agree that 18 U.S.C. § 3583(k) is unconstitutional because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt. Thus, we affirm the district court’s revocation of Haymond’s supervised release, but we vacate Haymond’s sentence and remand for resentencing....

We conclude that 18 U.S.C. § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and (2) it imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished....

By requiring a mandatory term of reimprisonment, 18 U.S.C. § 3583(k) increases the minimum sentence to which a defendant may be subjected. For example, when Haymond was originally convicted by a jury, the sentencing judge was authorized to impose a term of imprisonment between zero and ten years.  See 18 U.S.C. § 2252(b)(2). After the judge found, by a preponderance of the evidence, however, that Haymond had violated a particular condition of his supervised release, the mandatory provision in § 3583(k) required that Haymond be sentenced to a term of reincarceration of at least five years, up to a maximum term of life. This unquestionably increased the mandatory minimum sentence of incarceration to which he was exposed from no years to five years, yet the jury did not make the factual finding required to change his statutorily prescribed sentencing range. Instead, that finding was made by a judge by only a preponderance of the evidence. This violates the Sixth Amendment....

In Johnson v. United States, 529 U.S. 694 (2000), the Supreme Court made clear that, in order to avoid serious constitutional concerns, revocation of supervised release must be viewed as punishment for the original crime of conviction, not as punishment for the violation of the conditions of supervised release....

Regardless of the nature or severity of the defendant’s original crime of conviction, § 3583(k) imposes a mandatory minimum five-year term of imprisonment for only those specific offenses enumerated, while all other violations are subject to the maximum terms set in § 3583(e)(3). By separating these crimes from other violations, § 3583(k) imposes a heightened penalty that must be viewed, at least in part, as punishment for the subsequent conduct — conduct for which the defendant has not been tried by a jury or found guilty beyond a reasonable doubt.  This, the Court has said, is not permitted. 

To be sure, the sentencing judge can and, according to the Sentencing Guidelines, should consider the severity of the conduct by which a defendant violated the conditions of his or her supervised release.  A more serious violation might well recommend a longer term of reimprisonment.  But, if we wish to maintain the premise that revocation of supervised release is a punishment for the original crime of conviction, Congress must set the authorized term of reimprisonment based on the severity of that original crime.

Notably, Judge Kelly dissents in part because he is (reasonably) concerned that the majority's reasoning might impact any and all judicial fact-finding supporting the revocation of supervised release:

Were the court correct [in its constitutional analysis], the problem it identifies seems like it would be true of all revocation proceedings: if a defendant is sentenced to any term of supervised release, the fact that the release can then be revoked and the defendant be sent back to prison for an additional term means that “the penalty to which a defendant may be subjected” has been increased based on facts not found by a jury. Id. (emphasis added).

In other words, unless either (a) all revocation proceedings must empanel juries for fact-finding (which the Supreme Court, with good reason, has told us is not the case) or (b) the revocation proceeding is treated as a new criminal prosecution (which the Supreme Court also has told us is not the case), it is hard to understand why under current precedent Booker would apply but Apprendi and Alleyne would not. While postrevocation penalties might be considered attributable to the original conviction, the revocation proceeding is neither part of that criminal prosecution nor is it a new criminal prosecution. See Johnson, 529 U.S. at 700....

[According to the majority], the distinction, apparently, is that the terms of revocation differ based on what kind of new crime the defendant committed. But I see no reason why Congress cannot make that distinction. As the Sentencing Guidelines explain, under the “breach of trust” theory applicable to the revocation of supervised release, “the nature of the conduct leading to the revocation [can] be considered in measuring the extent of the breach of trust.” U.S. Sentencing Guidelines Manual § 7A3(b) (2016). In my view, Congress can determine that the commission of certain crimes constitutes a more serious breach of trust warranting a longer term of revocation. Doing so does not thereby make the revocation proceeding a new criminal prosecution....

Ultimately, we should not jump ahead of the Supreme Court when it has already spoken on this issue. Any tension between the supervised release scheme approved in Johnson and the rationale of the Apprendi / Booker line of cases is for the Supreme Court itself to resolve.

Ever since the Supreme Court got serious about applying its Apprendi doctrine to various sentencing determinations in cases like Blakely and Booker, I have thought the judicial fact-finding that takes place in federal supervised release proceedings were on constitutionally shaky grounds.  Or, to parrot Judge Kelly's final statment, I have long believed that there is significant tension between the supervised release scheme approved in Johnson and the rationale of the Apprendi / Booker line of cases.  But, in various settings, various lower federal courts have found various ways to uphold the judicial fact-finding involved in supervised release revocations — revocations that result in a significant number of federal defendants getting sent back to prison.  (This 2010 USSC report found that roughly 1/3 of all released federal prisoners get revoked and sent back to prison, and that 6% of the federal prison population are serving revocation terms.)

It will be very interest to watch if the Justice Department seeks en banc or SCOTUS review of this Tenth Circuit ruling.  I hope they will, in part because this case seems like it might just get SCOTUS to finally take a look at what its modern Fifth and Sixth Amendment doctrines should mean for supervised release revocation proceedings.

September 5, 2017 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)